updated 5/21/2004 9:34:56 AM ET 2004-05-21T13:34:56

Guests: Duncan Hunter, Jerry Springer, Ann Coulter, Alan Dershowitz

JOE SCARBOROUGH, HOST:  Tonight‘s top headline:  Democratic Leader Nancy Pelosi blasts the president and the war, while claiming she supports the troops.  The “Real Deal”:  You can‘t have it both ways. 

Welcome to SCARBOROUGH COUNTRY, where no passport is required and only common sense is allowed. 

Bush bashing has become a national pastime.  Are Democrats committing treason in a time of war?  We are going to be asking “Treason” author Ann Coulter. 

And then, should the U.S. be able to torture prisoners for information?  Harvard Law Professor Alan Dershowitz says yes.  And we are going to ask him why. 

Plus, from NBC News reporter to controversial talk show host to national Democratic delegate, Jerry Springer is here to talk about the culture wars and the war in Iraq. 

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome to SCARBOROUGH COUNTRY.

SCARBOROUGH:  Hey, welcome to SCARBOROUGH COUNTRY, where nobody gets voted off the island. 

Now, none dare call it treason, except for Ann Coulter, of course. 

It‘s time for tonight‘s “Real Deal.” 

Liberals insist that they love our troops, but they just hate the commander in chief.  House Democratic Leader Nancy Pelosi was the latest to broadside the commander in chief in a time of war, all the while insisting that she supported our soldiers and Marines in Iraq. 

This is what Pelosi said yesterday—quote—“Bush is an incompetent leader.  In fact, he‘s not a leader.  He‘s a person who has no judgment, no experience and no knowledge of the subjects he has to decide on.  He has on his shoulders the deaths of many more troops.”

Now, it‘s not surprising that a San Francisco liberal would talk in such a disparaging way about a Republican president.  Remember, elitists continue insisting Ronald Reagan was an idiot even after he won the Cold War.  But Massachusetts Senator Ted Kennedy was not content to simply slander another Republican commander in chief.  Instead, he went after our G.I.s personally by comparing them to Saddam Hussein and Saddam‘s gang of butchers. 

(BEGIN VIDEO CLIP)

SEN. EDWARD KENNEDY (D), MASSACHUSETTS:  On March 19, 2004, President Bush asked, who would prefer that Saddam‘s torture chambers still be open?  Shamefully, we now learn that Saddam‘s torture chambers reopened under new management, U.S. management.

(END VIDEO CLIP)

SCARBOROUGH:  Liberals‘ tortured argument that they can hate the president, hate the troops and hate American foreign policy, while not actively hurting our country‘s foreign policy goals is becoming less convincing by the day. 

And, tragically, it seems like some Democratic leaders would rather America lose this war than let George Bush win reelection.  It may be a disgusting reality of modern American political life, but it‘s tonight‘s “Real Deal.” 

With me now is Ann Coulter.  She‘s the author of “Treason: Liberal Treachery From the Cold War to the War on Terrorism.”  MSNBC political analyst Lawrence O‘Donnell, former presidential candidate, MSNBC‘s political analyst, also, Pat Buchanan. 

Ann Coulter, let me go to you first.  You wrote a book about this.  Of course, your book was talking about treason during the Cold War.  Do you extend that to the war on terror and what is happening now in Iraq? 

ANN COULTER, AUTHOR, “TREASON”:  Yes, actually, the book did bring it up the war on terrorism, though I think I would put Pelosi‘s statement more in the category of my prior book, “Slander.”  I have a whole chapter on this incredibly crucial argument of Democrats against Republicans:  You‘re stupid.

And that is basically what Nancy Pelosi‘s argument comes down to.  I don‘t see really where she is pointing to the lack of judgment and competence and so on.  It‘s just a long way of saying George Bush is stupid. 

SCARBOROUGH:  Now, what about like for instance statements by Ted Kennedy. 

COULTER:  Oh, no, that was treasonous. 

(LAUGHTER)

SCARBOROUGH:  OK.  And I want you to explain here—and we are going to go around our panel, two others that actually opposed this war—but why do you believe that a statement by Ted Kennedy saying that our troops basically have taken over for Saddam‘s torturers was actually treasonous?

COULTER:  Well, you‘re talking about a military 1.4 million strong, well over 100,000, several hundred thousands have been through Iraq.  And, you know, so far we have seven malefactors.  To smear the entire management of the prisons of Iraq and say they‘re the same as Saddam‘s torture chambers, that‘s really unbelievable.  It is literally unbelievable. 

SCARBOROUGH:  And how is it treason?  Define treason for me, as you did in your book. 

COULTER:  Rooting against your own country.  And I don‘t think it takes sneering remarks about a commander and chief in wartime.  I don‘t think there‘s anything treasonous about opposing a wartime commander‘s position. 

The one shining example of that is my fellow guest Pat Buchanan.  It‘s as if—it occurs to me, it‘s as Republicans decided Democrats didn‘t have enough good arguments on their side, so we gave them our best debater. 

(LAUGHTER)

SCARBOROUGH:  Pat Buchanan, I‘ll go to you now.  Democratic leader Nancy Pelosi, of course, as I said, lambasted the president today.  I want you to take a listen. 

(BEGIN VIDEO CLIP)

REP. NANCY PELOSI (D-CA), MINORITY LEADER:  I believe that the president‘s leadership and the actions taken in Iraq demonstrate an incompetence in terms of knowledge, judgment, and experience in making the decisions that would have been necessary to truly accomplish the mission without the deaths to our troops and the cost to our taxpayers. 

(END VIDEO CLIP)

SCARBOROUGH:  And, of course, she also made some statements suggesting that, again, not suggesting, saying, that the death of these troops are on the president‘s shoulders. 

Pat Buchanan, this is not just a Democratic issue, is it?  When Bill Clinton was president, there were some Republicans on the extreme right that were actually rooting against Bill Clinton‘s wars in Kosovo and Bosnia, weren‘t there? 

PAT BUCHANAN, NBC POLITICAL ANALYST:  Well, certainly.  I was a conservative who thought the wars against Serbia was unjustified, and Kosovo, and I thought we shouldn‘t have gone to war. 

But let me talk about Ms. Pelosi.  I agree with Ann.  That is slander and it‘s also I think stupid because, people, I don‘t care who you are, even if you oppose the war or think maybe we ought to move out, you don‘t like to hear that kind of language about the commander and chief.  But with regard to Teddy Kennedy, this is the outrage of moral equivalence that was used during the Cold War, saying America and Moscow are equal. 

Now, what happened at Abu Ghraib prison was, we all agree, an outrage.  It was nasty.  It was obscene.  We investigate it.  We condemn it.  What Saddam Hussein was doing in there was rape, torture and murder as a matter of policy.  In other words, what happened in Abu Ghraib was against our policy.  What he did in Abu Ghraib was his policy.  To put a moral equivalence there, I think, is a moral outrage on the part of Senator Kennedy. 

SCARBOROUGH:  Lawrence O‘Donnell, I want to again play Ted Kennedy‘s infamous Abu Ghraib comments on the Senate floor that Ann Coulter said was treason.  Take a listen. 

(BEGIN VIDEO CLIP)

KENNEDY:  On March 19, 2004, President Bush asked, who would prefer that Saddam‘s torture chambers still be open?  Shamefully, we now learn that Saddam‘s torture chambers reopened under new management, U.S.  management.

(END VIDEO CLIP)

SCARBOROUGH:  Lawrence O‘Donnell, is that treason? 

LAWRENCE O‘DONNELL, MSNBC SR. POLITICAL ANALYST:  Of course, it‘s not treason.  If we‘re going to be at all serious about it, we have to dismiss Ann‘s absurdist use of the term. 

Senator Kennedy was reading a staff-written speech.  He won‘t read that speech again.  I‘m sure he regrets that phrasing.  It is as preposterous as Pat Buchanan suggests it is.  I think the whole country knows that.  I think Senator Kennedy, if he were to reread it, would not want to ever have to say that again. 

SCARBOROUGH:  Should he apologize, Lawrence? 

(CROSSTALK)

O‘DONNELL:  Pardon me?  I didn‘t hear it.

(CROSSTALK)

SCARBOROUGH:  I‘m sorry.  Should he apologize to our troops for saying that? 

O‘DONNELL:  I think he should.  I think it would be wise for him to do a backpedal from that as quickly as he can.  But if we‘re going to be discussing whether or not it‘s treason, that is pretty easily handled. 

On Nancy Pelosi, look, her statements—look, it‘s important that a politician not use the simplest, fastest language possible and simply call the president stupid, as Ann is suggesting Nancy Pelosi should have done.  She used careful language to call into question his judgment and his experience in prosecuting this war.  That is the essence of the Kerry presidential campaign. 

There‘s certainly nothing slanderous about that.  It‘s simply an offering that this person doesn‘t have the experience or the judgment to carry out what he got himself into.  That‘s what politicians are constantly saying about each other in campaigns.  And there‘s absolutely nothing unusual.  It‘s perfectly standard political speech. 

SCARBOROUGH:  Do you think we‘re getting, though, to a stage here—and of course certainly it started when Bill Clinton was president of the United States.  Republicans said some extraordinary inflammatory things.  I say it started there.  It actually—I would personally trace it back to the Robert Bork hearings.

But doesn‘t it seem that we keep ratcheting it up more and more and more, and pretty soon, we are going to have an Aaron Burr, Alexander Hamilton type duel?  Really, I don‘t know where this ends. 

O‘DONNELL:  I don‘t we do ratchet it up, Joe. 

I think if you go back and you look at the presidencies of Lyndon Johnson and Nixon back to back, what those two were accused of, not necessarily by elected officials—they were accused of having the blood of 55,000 American soldiers on their hands because of their utter incompetency in prosecuting a war that they could not possibly figure out. 

And so what Nancy Pelosi has said, which is basically that since President Bush declared the war to be over and because he thought the war was over, she is saying he is responsible in some indirect way for the deaths of the American soldiers that have occurred after that, that‘s not such an extraordinary American political statement. 

BUCHANAN:  Joe, let me get in on this, if I could, since Richard Nixon‘s name has been taken in vain here. 

(LAUGHTER)

BUCHANAN:  Richard Nixon tried to do an honorable thing, which was remove our guys from Vietnam without pouring the whole thing down the sewer for which 58,000 gave their lives. 

But I do agree with Lawrence on this.  Those times were—from 1967 when I was up there with Nixon, and Johnson was in, all the way through Nixon left, were the most savage, brutal, nastiest times in American politics.  And rough as they are right now, and they are rough, I don‘t think it‘s really comparable to the ‘60s and early ‘70s. 

SCARBOROUGH:  Ann Coulter, I want to read you a Michael Moore post on his Web site. 

He said: “I oppose the U.N. or anybody else risking their lives of their citizens to extract us from our debacle in Iraq.  The majority of Americans supported this war once it began and sadly that majority must now sacrifice their children until enough blood has been let that maybe, just maybe, God and the Iraqi people will forgive us in the end.”

Ann Coulter, is that treasonous?

COULTER:  Well, I think his staff wrote it for him. 

(LAUGHTER)

COULTER:  I love that excuse, by the way. 

(LAUGHTER)

SCARBOROUGH:  Yes. 

OK, well, let‘s say his staff didn‘t write it for him.  You are something, aren‘t you?  I‘m going to have to let Lawrence respond in a second.  But do you think—because I personally, I don‘t know how that is not treasonous when you say more young Americans need to die over in Iraq.

COULTER:  Yes.  I think it‘s hard to get around that. 

No, they root against their own country.  I think that is an unavoidable conclusion.  And I would also say I‘m enthusiastically in favor of your idea of a duel, since Republicans are so much better with guns. 

(LAUGHTER)

SCARBOROUGH:  Lawrence O‘Donnell, we only have 15 seconds left, but I will ask you the same question about Michael Moore.  If somebody is saying more Americans need to die in war, is that treasonous? 

O‘DONNELL:  What Michael Moore said is not treason.  We have a First Amendment.  That has to be remembered.  Even on SCARBOROUGH COUNTRY, we have a First Amendment. 

SCARBOROUGH:  So is it treasonous or not? 

O‘DONNELL:  No, not in the least. 

COULTER:  What is treasonous? 

(CROSSTALK)

O‘DONNELL:  Let‘s read the constitutional definition. 

COULTER:  No, let‘s not.  Why not just treasonous?

(CROSSTALK) 

BUCHANAN:  One, giving aide and comfort to the enemy in time of war.

(CROSSTALK)

SCARBOROUGH:  Hold on.  We are going to continue this when we come back.  We have got all three talking at the same time.  And I‘m going to find out from Lawrence O‘Donnell what exactly somebody could say that he would consider treasonous.  You know what?  You can have a First Amendment and you can still have treason. 

Anyway, coming up next, we have Duncan Hunter.  He is chairman of the Armed Services Committee.  He is going to joining us to talk about President Bush‘s appearance on the Hill today and why he thinks Republicans are wasting generals‘ time with the prisoner abuse scandal. 

Then, famed attorney Alan Dershowitz is going to be with me and we are going to find out whether he thinks torture should be an option for the United States.  He does. 

More on that coming up. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Ann Coulter, Pat Buchanan, and Lawrence O‘Donnell talk treason when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

SCARBOROUGH:  The chairman of the House Armed Services Committee, Duncan Hunter, is with me now. 

Congressman, great to see you again.

REP. DUNCAN HUNTER ®, CALIFORNIA:  Hey, good to be with you Joe. 

SCARBOROUGH:  You know, the president of the United States came up to the Hill to talk to you and other Republicans.  And Rich Lowry of “The National Review” actually said the president flopped. 

This is what Lowry said: “He gave them a pep talk, telling them how good the economy is and how determined he is to prevail in Iraq.  Then he didn‘t take any questions and left.  The members expecting a more substantive session were disappointed.” 

Do you feel like the president came to Capitol Hill, spoke to his allies and let them down? 

HUNTER:  Well, Mr. Lowry must figure that those standing ovations that we gave the president were just opportunities to stretch. 

But I thought that his remarks were very well received.  I received them well.  And he walked through a lot of detail on Iraq and his social policies and the achievements that we have made.  It was very inspirational.  And the great thing about this president, too, Joe, is when he gets finished talking, he doesn‘t just rush off.  He was there for 20, 30 minutes talking to members.  And any individual member could come up and have a chance to talk with him and it was a great exchange. 

SCARBOROUGH:  Chairman Hunter, you took issue with the Senate hearings yesterday on the Iraqi prison scandal.  I want to read to you again what you said, because it‘s an important point: “Those people are now being pulled out of those battlefield positions and brought over to continue to hammer on an investigation which already encompasses six full investigations of the seven bad apples.”

Now, here you are, the chairman of the House Armed Services Committee, attacking Republicans and Democrats like on the Senate Armed Services Committee—and I agree with you 100 percent—for taking generals out of a battle zone.  How detrimental do you think it is to our cause over in Iraq stabilizing that area when you yank commanding generals out of a battle zone to come back and speak at a hearing? 

HUNTER:  Well, first, Joe, I like and respect John Warner.  He is a good chairman of the Senate Armed Services Committee and a lot of those members there are old friends, old friends of yours.  And they have their judgment in this situation. 

But this is my judgment.  General Sanchez is a commander.  He is a battlefield commander of Iraq.  Over the last 24 hours, we have had 66 attacks on American forces.  If you‘re the battlefield commander of Iraq and you have issues stacking up on your desk with respect to convoy security, surveillance capability, operations, working in this IED problem that we have got, working the force protection problems.  We are trying to up-armor and get more up-armored Humvees and armored trucks into that theater to protect our guys from getting shredded by these .155 rounds going off on the sides of the roads.

So you have literally tons of issues stacking up on your desk.  Some of those issues are life-and-death matters.  And there‘s nothing that General Sanchez can add or detract from the court-martials that are taking place.  And, to his credit, Joe, back in January, when that first soldier came forward, General Sanchez, without any TV reporters or any newspaper people urging him to do it, he started an investigation immediately.

And he went out to the world through General Kimmitt‘s briefing on January 13 and told about 50 million people via international television that we the United States were investigating ourselves.  And they then did an update on that and they then followed those investigations down through the court-martial proceedings.  And we had our first conviction yesterday. 

SCARBOROUGH:  And we‘re back now talking politics with Ann Coulter, Lawrence O‘Donnell, and Pat Buchanan. 

And I think, Ann, before we took a break, you wanted to say something else about treason.  Go ahead. 

COULTER:  Democrats want to keep putting this—or liberals—in terms of a prosecutable defense and what it says in the Constitution, which is a way of saying you can never call anything treasonous.  We don‘t prosecute for the crime of seduction anymore, but that doesn‘t mean there‘s no such thing as seduction.

Since Hanoi Jane went to Vietnam, we obviously are not a country that prosecutes for treason.  But the fact that we don‘t prosecute anymore does not mean there‘s no such thing as a treasonous statement.  And for liberals to be constantly leering over mishap, every damaging incident that happens to our troops in Iraq, wishing for more Americans to die, that is treasonous under any normal understanding of what treasonous is.  If it isn‘t, I would like to know what it is treasonous. 

SCARBOROUGH:  Lawrence, what is treasonous?

O‘DONNELL:  Well, it‘s very funny.  I get Ann‘s routine.  It‘s very funny.  She is a law school graduate.  She knows the word treason is a legal term. 

COULTER:  So is seduction.

(CROSSTALK)

O‘DONNELL:  She has made a career out of willfully misusing it every time she uses it, which is very funny. 

(CROSSTALK)

COULTER:  I‘m not using it as a legal term.  That‘s my point. 

O‘DONNELL:  You‘re using it as a joke, Ann.

COULTER:  You‘re using it as a legal term in order to say there‘s no such thing. 

O‘DONNELL:  It is a legal thing.  The word murder is also a legal term.  These are legal terms.

COULTER:  So is seduction. 

(CROSSTALK)

O‘DONNELL:  You don‘t get to come up with your definition of what murder is.  It‘s a childish thing to do.  And it‘s beneath you as a law school graduate, but it‘s great comedy.

(CROSSTALK)

O‘DONNELL:  And I don‘t want to get in the way of it. 

COULTER:  Does that mean there‘s no such thing as seduction?

O‘DONNELL:  Pat Buchanan, Pat Buchanan wisely...

(CROSSTALK)

O‘DONNELL:  Pat Buchanan will define treason for you right now, Ann.

Go ahead, Pat.

SCARBOROUGH:  Yes, Pat, take over.

(CROSSTALK)

(LAUGHTER)

BUCHANAN:  Giving aid and comfort to the enemy in a time of war. 

Now, let me say, I agree with Ann, though, at this time.  In the Nixon years, we had 500,000 demonstrators two months in a row and about 5,000 came in with Viet Cong flags.  They say, ho, ho, Ho Chi Minh, the NLF is going to win.  And when that war was lost, a bunch of guys went up there to New York and congratulated the North Vietnamese.  They said it‘s great.  Cambodia has been taken over.  That was treason in time of war. 

If that war had been declared, those folks should have been prosecuted, but it was not declared. 

(CROSSTALK)

O‘DONNELL:  It‘s not treason.  Here‘s why.

Just so Americans can know, you can say anything about the United States and about its conduct of a war.  You can even actively say you hope the other side wins.  That‘s not treason.  You have to go to the other side.

BUCHANAN:  It‘s not prosecutable treason. 

COULTER:  Right.  Of course it‘s treasonous. 

(CROSSTALK)

O‘DONNELL:  You have to provide them with information that will actually help them.  That is what aiding and abetting is.  It is not speech. 

COULTER:  No, and we still won‘t prosecute.

O‘DONNELL:  It is not speech.  There is no such thing as treason through speech alone, no such thing. 

BUCHANAN:  Tell it those guys who were locked up during the Civil War and World War I. 

(CROSSTALK)

COULTER:  How about Ezra Pound?  He gave radio broadcasts from Italy. 

BUCHANAN:  Exactly.  Lord Haw-Haw.  Tokyo Rose.

COULTER:  We simply don‘t prosecute for it anymore.

BUCHANAN:  Exactly. 

COULTER:  Just like I say we don‘t prosecute for the crime of seduction.  That does to the mean there‘s no such thing as seduction. 

Lawrence keeps hinting at that idea that, because it is the spoken word, it‘s protected by the First Amendment.  Well, OK, saying stick them up or give me all your money is the spoken word.  That doesn‘t mean you‘re allowed to commit bank robberies because you have to use speech to engage in that.  That‘s an insane legal theory.  But I‘m one who is saying I‘m not talking about this.

O‘DONNELL:  You don‘t prosecute bank robbers for what they say.  You don‘t prosecute a bank robber for what they says.  You prosecute them for what they do.  Treason is an action.  It is not human speech.

COULTER:  Like Ezra Pound?  Like Ezra Pound?  He was in jail. 

(CROSSTALK)

BUCHANAN:  He was put in Saint Elizabeth‘s. 

COULTER:  For radio broadcasts. 

BUCHANAN:  Tokyo Rose, Lord Haw-Haw. I think some of these folks were executed. 

COULTER:  Right.  Right. 

SCARBOROUGH:  Pat Buchanan, tell me, I want you to follow up on this again.  Again, you haven‘t had a chance to talk about the Michael Moore quote, where Michael Moore said the quote earlier, where he said that more Americans need to die over in Iraq.  He doesn‘t want it to be United Nations effort because then the pain would be spread. 

Would you consider that to be the type of treasonous remark or the type of treasonous statement that those Viet Cong supporters in the late ‘60s, early ‘70s, according to you, committed up in Washington, D.C.? 

BUCHANAN:  I think it‘s right on the same level.  It‘s disgusting.  It is utterly un-American.  It is hateful. 

But I do agree with—you cannot—it is not prosecutable, I think in terms of just him speaking out and saying that.  There were terms when we had the Espionage Act and things like that where you could have put people away.  I think one of the labor leaders was locked up during World War simply for speech. 

SCARBOROUGH:  All right. 

I want to ask you, Lawrence O‘Donnell, in the time we have remaining, you certainly know—you‘re a bright guy, bright Democrat.  You certainly know that all of this anger...

BUCHANAN:  He‘s not all that bright.

(LAUGHTER)

SCARBOROUGH:  I know.  I‘m being polite.  I was told to be civil. 

But you understand certainly, just like I understood and Republicans understood in the ‘90s, that all this hate speech towards Bill Clinton was not helpful.  You understand that all this hate speech, if not treasonous, certainly doesn‘t help John Kerry‘s efforts in getting elected president, right?

O‘DONNELL:  Well, Michael Moore is not going to say anything that helps any political candidate at any time. 

(LAUGHTER)

O‘DONNELL:  But what Nancy Pelosi was saying, for example, is actually helpful. 

It‘s something that people if her position frequently do for their candidates, meaning it‘s—she went to a verbal level that John Kerry doesn‘t want to go to, shouldn‘t go to, because it would be alienating at his level.  She is functioning as one of those attack operatives beside the Kerry campaign.  And it‘s sometimes can be helpful.  It sometimes can go over the line.  The voters will judge in November whether any of that stuff matters. 

SCARBOROUGH:  All right, thanks so much.  I appreciate you being with us, Lawrence O‘Donnell, Pat Buchanan and Ann Coulter.  It was a heck of a discussion.  We appreciate it. 

(CROSSTALK)

COULTER:  Thanks.

SCARBOROUGH:  And coming up, we have got Harvard Law Professional Alan Dershowitz. 

(BEGIN VIDEOTAPE)

ALAN DERSHOWITZ, AUTHOR, “AMERICA ON TRIAL”:  We can‘t forgive the terrorists for making us have to do some of the things that we have to do. 

(END VIDEO CLIP)

SCARBOROUGH:  Alan Dershowitz tells me why the use of torture is OK sometimes. 

Then, you may know him as a talk show host, but this summer, he is going to be serving as a delegate to the Democratic Convention in Boston.  Jerry Springer joins us in SCARBOROUGH COUNTRY to talk politics. 

So stick around. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Coming up, Harvard Law Professor Alan Dershowitz comes to SCARBOROUGH COUNTRY to talk about why he thinks torture should be used to get information from terrorists. 

But, right now, let‘s get the latest news from the MSNBC News Desk. 

(NEWS BREAK)

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome back to SCARBOROUGH COUNTRY.

SCARBOROUGH:  Boy, what a story on Ahmad Chalabi.  Unbelievable. 

Ahmad, Ahmad, we hardly knew ye. 

Well, is torture ever acceptable?  Harvard Law Professor Alan Dershowitz says torture warrants should be used by the executive branch when necessary.  The author of more than 20 books, including “America on Trial: Inside the Legal Battles That Transformed Our Nation,” Alan Dershowitz has talked about terror over the past several weeks. 

And I talked to Professor Dershowitz earlier.  And I asked him why his opponents say torture does not work. 

(BEGIN VIDEOTAPE)

DERSHOWITZ:  I wish they were right about it not working.

We had a case in the Philippines where the Philippines tortured somebody and revealed a plot to knock down 11 or 12 commercial airliners flying over the Pacific and a plot to kill the pope.  And of course they didn‘t believe him.  You never believe anybody who says something under duress.  But they told him to go out and proof it.  And he took them to where the bombs were and where the altimeters were and it became self-proving. 

If it didn‘t work, we wouldn‘t have to have the debate.  It rarely works.  And I‘m not in favor of it.  But if we ever had a case where a ticking-bomb terrorist, by having him tortured nonlethally, could save the lives of thousands of American citizens, believe me, we would do it.  We should never do what we did at Abu Ghraib, which is turn a bunch amateurs with no experience on to a bunch of low-level detainees and tell them essentially, do what you have to do to soften them up. 

That was the worst of all possible worlds.  It was stupid.  It was nonproductive.  It hurt us.  It didn‘t help us.  If, God forbid, we ever had a situation where we really needed to get information to save lives from a very high-level person, the president of the United States, the second of defense or the chief justice of the United States ought to authorize it.  We need visibility.  We need an accountability and we need transparency. 

SCARBOROUGH:  Let‘s talk about what torture is.  There‘s been a lot of debate over that over the past several weeks, since this scandal has come up.  There have been pictures of prisoners that have been stripped, stacked in piles, one with underwear over his head.  Do you consider chaining somebody up and putting women‘s underwear over their head as torture?  Is putting somebody under water torture?  How do we define what torture is?

DERSHOWITZ:  Well, certainly there‘s a difference between putting somebody under water, which we probably did with Shaikh Khalid Mohammed, threatening to drown him, and simply humiliating people, as we did in Abu Ghraib prison. 

In my book, “America on Trial,” I have two examples of where we used torture, once very, very unsuccessfully.  When Julius Rosenberg was tried for being a spy, an atomic spy, we knew he was a spy.  We had overheard intercepts.  And we knew that he knew the names of other spies and he wouldn‘t reveal them.  So we simply threatened to kill, execute his wife, who was innocent, unless he provided the information.  We thought that would work.  It didn‘t work. 

And we carried through the threat and executed her, even though we knew she was innocent and he was guilty.  And, of course, in My Lai, we know that torture was used in Vietnam repeatedly, much, much worse.  This is very, very small stuff compared to what we have done and other countries have done in the past. 

The worst hypocrisy is the Arab countries, Jordan and Egypt and the Philippines complaining about some humiliation, when they pull out fingernails and use electrodes.  It‘s incredibly hypocritical.  And I was shocked when Our president apologized to the king of Jordan.  The king of Jordan should look in the mirror.  He‘s a nice guy, but he presides over a regime in which real torture is used all the time against dissidents and against political opponents. 

SCARBOROUGH:  Professor, I couldn‘t agree with you more.  I mean, you look—you ask those prisoners in Iraq whether they would have rather been in that prison or rather been in any prison in between Morocco and Pakistan and they would probably take that prison.  It‘s just unbelievable how much torture is used in the Middle East by these Arab countries who are actually going after us. 

(CROSSTALK)

DERSHOWITZ:  And, by the way, I have no problem with using their own sexism against them.  It‘s a good thing to use women interrogators on radical Muslim extremists.  I think it‘s a good thing to make them be stripped naked.  I think these are legitimate forms of interrogation in cases where we have high-level prisoners who can provide high-level information. 

I think you have to draw the line at physical abuse that threatens death, such as water boarding.  What we did with Shaikh Khalid Mohammed was even worse.  We arrested his children along with him.  And nobody knows what threats were made against his children.  But he was surely led to believe if he didn‘t cooperate not only would his life be in danger, but those of his young children would be in danger. 

Look, we‘re in a very rough war with very rough people.  This Shaikh Khalid Mohammed is the guy who probably killed Danny Pearl.  And the guy who killed this other man, Berg, these are ruthless, horrible people.  And we have to save lives, but we have to live with ourselves, too, and we have to live within our system of democratic accountability. 

Striking that balance is very, very difficult.  In “America on Trial,” I talk about cases throughout last two 250 years where a judiciary has tried to strike that balance, not always with success, particularly during times of emergency. 

SCARBOROUGH:  Professor Dershowitz, you have always been known as being a left-of-center professor politically, also judicially.  Have your personal views been changed by what happened on September 11?  Now that we‘re in this war against terror, has that somehow caused your views to evolve or, your critics would say, devolve?

DERSHOWITZ:  Well, remember that the difference between liberals and conservatives on this is, Scalia says the Constitution is a dead document.  It never changes.  I have always thought of the Constitution as a live document that changes.  But it changes both ways. 

It changes sometimes by expanding rights.  Sometimes it changes by contracting or reconsidering rights.  Any live document has to respond to the experiences of the time and the realities.  The Constitution, I believe, is a living document.  So, as a liberal, I believe the Constitution has to adapt to changing reality.  And, of course, my views changed after September 11. 

You have to be somebody who is blind, deaf and dumb not to be influenced by the real world that‘s out there, just like the Supreme Court is going to be influenced by the pictures at Abu Ghraib.  If I had to write a new book about “America on Trial” five years from now, the trial of the soldiers at Abu Ghraib and the cases which are in my book with the detainees clearly will be influences by the photographs, more than by the argument, more than by the briefs.  The photographs will impact the Supreme Court‘s decision because justice is a function of real experience. 

SCARBOROUGH:  Yes. 

And let‘s take a listen to what Republican Senator James Inhofe of Oklahoma said earlier this week about the prison scandal. 

(BEGIN VIDEO CLIP)

SEN. JAMES INHOFE ®, OKLAHOMA:  And I‘m probably not the only one up at this table that is more outraged by the outrage than we are by the treatment.  The idea that these prisoners, they are not there for traffic violations.  If they‘re in cell block 1A or 1B, these prisoners, they are murders and they terrorists.  They‘re insurgents.  Many of them probably have American blood on their hands. 

(END VIDEO CLIP)

SCARBOROUGH:  Professor, Senator Inhofe certainly not a darling of the left.  But at the same time, what he is talking about is what I‘m hearing from a lot of people in middle America.  Americans seem to be realistic about what we‘re facing, just like they were realistic after Hiroshima, just like they were realistic after about the fire bombing of Dresden and the hundreds of thousands of civilians we killed then. 

DERSHOWITZ:  Right. 

SCARBOROUGH:  Do you think most Americans get it, that we‘re facing some very tough characters, these Islamic terrorists and we‘re going to have to do what it takes to get information to save lives? 

DERSHOWITZ:  I think so. 

But I think Americans want us to do it smarter, want us to do it better.  We could have done it a lot smarter.  Most of these people were not high-value detainees.  If we were to limit our rough interrogation methods to the most important, high-value detainees—nobody is complaining about what we have done to Shaikh Khalid Mohammed, which is worse. 

That tells us I think that Americans are prepared to go to extraordinary lengths to save American lives and the lives of many others, as long as we do it smart, and we do it with accountability, as long as we do it in a way that we can be proud and hold our heads up and say, yes, we did this.  We‘re not denying it.  We did it because of the war that has been thrust upon us.  But we have to be smart and we have to have accountability.  And that‘s the difficult choice.

And I don‘t think we did it well at all in Abu Ghraib by putting a bunch of amateurs in charge of a bunch of low-level detainees and Saturday telling them, do what you have to do, and letting them have cameras and putting us and America in a terrible position.

But I‘m also outraged at the outrage.  I think there‘s been an incredible amount of hypocrisy particularly by the Arab countries and some others for not understanding that most of the outrage should be directed against those who have put us in the position, forced us to do this.  Golda Meir once said something very interesting in Israel.  She said, I can perhaps forgive them for killing our children, but I can never forgive them for making us kill their children. 

And we can‘t forgive the terrorists for making us have to do some of the things that we have to do, because they made us—put us in a position where have to defend our civilians.  And that‘s the highest calling of democracy, to defend its civilians against guilty murderers that are out there trying to kill our grandchildren and kill our children.  Let there be no mistake about that.  That‘s their goal. 

SCARBOROUGH:  All right, Harvard Law Professor Alan Dershowitz, thanks for being with us.  The book is “America on Trial: Inside the Legal Battles That Transformed Our Nation.”  We appreciate you being with us tonight. 

DERSHOWITZ:  Thank you. 

(END VIDEOTAPE)

SCARBOROUGH:  And stick around, because, up next, talk show host and newly appointed Democratic delegate Jerry Springer steps in to SCARBOROUGH COUNTRY to talk politics and pop culture. 

You‘re not going to want to miss that, so stick around. 

ANNOUNCER:  Tonight‘s SCARBOROUGH COUNTRY challenge, how many Emmy Awards has Jerry Springer won?  Is it, A, zero, B, three, or, C, seven?  The answer coming up. 

(COMMERCIAL BREAK)

ANNOUNCER:  In tonight‘s SCARBOROUGH COUNTRY challenge, we asked, how many Emmy Awards has Jerry Springer won?  The answer is, C, seven.  However, he won the Emmys not for “The Jerry Springer Show,” but for his news reporting in the 1980s and early ‘90s. 

Now back to Joe.

(LAUGHTER)

SCARBOROUGH:  When I saw A go up, I was a little worried that we had invited Jerry on the show and then we‘re rude.  I‘m glad it was seven and not zero. 

Well, anyway Jerry Springer is going to Boston.  He is going to be one of the delegates at the Democratic Convention this July in Boston.  But he is in SCARBOROUGH COUNTRY tonight. 

Jerry Springer is obviously a very successful TV talk show host.  He also has an opera going to Broadway that is named after him.  And he, of course, was once the mayor of Cincinnati. 

Jerry, thanks for being with us tonight. 

JERRY SPRINGER, TALK SHOW HOST:  Thanks for having me, Joe. 

SCARBOROUGH:  I‘m sure when you were mayor of Cincinnati, you never foresaw the day when there would actually be an opera launched in London after your life. 

SPRINGER:  My mother would be so proud.  She would say, Gerald, you got culture.  You‘re an opera. 

(LAUGHTER)

SCARBOROUGH:  Exactly. 

Now, I want to start by showing you what the Republican chairman in Ohio had to say about Democrats making you one of their delegates.  He said -- quote—“They ought to be absolutely embarrassed and ashamed of this guy, but obviously standards take a back seat to power in the party of Bill Clinton.”

Jerry, have you lowered the standards of the Democratic Party in the great state of Ohio by being a delegate? 

SPRINGER:  Well, if the basis is my show, yes.  The show is stupid.  I have always said that.  It has no value.  But that‘s not the reason I‘m a delegate.  I‘m a delegate not because of the show.  I‘m a delegate because I spend an awful lot of time in Ohio to helping to rebuild the party, raising money for other candidates, recruiting candidates, going around to county dinners, articulating a point of view that I think needs to be articulated. 

So there‘s a lot to me, I would like to think, other than the show.  The show is just my job.  I spent six hours a week doing it.  But most of my life, I have been involved in politics.  I have been in it for 30 years.  So I understand why he says that, because he is head of the Republican Party.  And, obviously, any attack they can make on Democrats, they will do, just like Democrats make attacks on Republicans.  So I don‘t take it personally. 

SCARBOROUGH:  Yes, well, good for you. 

Jerry, you were obviously mayor of Cincinnati.  Also there were some rumors that you were going to be running for the United States Senate this year. 

SPRINGER:  Yes. 

SCARBOROUGH:  Why did you back out of that race? 

SPRINGER:  Because there would not be enough time between the end of the show and the time that I actually ran.  So I might run for either governor or Senate in ‘06.  But if I do that, I will be sure to stop the show next year.  I want to have at least a year and a half of space between the end of the show and the election, because otherwise I‘m not going to be heard. 

Everyone will be constantly talking about the show.  And then there won‘t be any purpose to run.  So I need that separation. 

SCARBOROUGH:  How do you get past the show?  How do you get past the opera?  How do you get past all these other things that are out there floating in pop culture to get people in Ohio to select you as their governor or their United States senator? 

SPRINGER:  Well, I guess there are two answers to that.  First of all, the show has been on 14 years.  So let‘s not kid ourselves.  Even though it‘s politically correct to say, oh, that‘s a horrible show, I also realize that it‘s been on for 14 years, so there are millions and millions of fans.  So there‘s a base there.

But beyond that, what people are concerned about is not television.  They‘re concerned about their own lives, particularly in the state of Ohio, where we lost 270,000 jobs just since President Bush has been in office, when we have real issues about Iraq, when people are worried about not being able to afford college education anymore, where the middle class is really being strapped today. 

These are issues that affect their lives.  They‘re going to vote on that.  They‘re not going to vote on a television show.  If I were running for an Emmy, then you could say, oh, Springer is a terrible show, don‘t vote for him.  But I‘m not going to be running on that.  I‘m going to be running hopefully to make life a little better in Ohio. 

We have had the—in fairness, we have had the same party running our state for the last 14-16 years.  And no one with a straight face, Democrat, Republican, or independent, thinks Ohio is in good shape.  Everyone agrees it‘s in horrible shape.  So if we all agree on that, then why not have some alternatives to the policies we currently have? 

SCARBOROUGH:  Jerry, you are going to go to Boston as a Democratic delegate.  Are you going to support John Kerry or are you going to support Ohio‘s own Dennis Kucinich?

SPRINGER:  Well, Dennis is a friend.  And I don‘t just say that because it‘s politically correct to say it.  I really admire him.  That guy is pure conscience.  And even if you don‘t agree with every one his positions, there is a guy who is in politics for the very best of reasons.

So I admire him.  But, no, John Kerry is our candidate and I‘m going there and I‘m going to support him. 

SCARBOROUGH:  And who is going to win Ohio come the fall?  There‘s no way Bush can win the White House without winning Ohio.  What are the latest numbers up there and do you think that John Kerry can actually be one of the first Democrats in quite a while to win Ohio? 

SPRINGER:  It‘s certainly possible that he could win Ohio. 

The straight answer to your question is, I don‘t know.  And it‘s too early.  As you know, in this life, you know, every 24 hours, it‘s a new political reality, so who knows what the headlines are going to be?  But, clearly, I think President Bush has real problems in Ohio, because Ohio has been hit probably worse than any other state in the Union in terms of the economy.  Ohio is really baring the brunt of some of these policies. 

More 18-34-year-olds leave the state of Ohio than any other state in the union.  So Ohioans can‘t make fun of Mississippi, Alabama, West Virginia, Kentucky.  It‘s Ohio that our kids can‘t wait to get out of.  And with all this job loss in Ohio, this is where I think the president has a problem. 

Just in today‘s headlines, Timken, the steel, ball bearing manufacturing company in Canton, Ohio, 1,300 people laid off.  And Timken is one of the biggest contributors to George Bush.  In fact, the president came to the Timken factory to talk about his economic policy several months ago, and now these layoffs.  I think Bush has problems in Ohio.  Will he win it or lose it?  I don‘t know. 

SCARBOROUGH:  All right, thanks so much for being with us, Jerry Springer.  We greatly appreciate it. 

SPRINGER:  Thanks, Joe. 

SCARBOROUGH:  All right.

And coming up next, another reason why you may have to mortgage your house to fill up your gas tank this summer.  We will tell you about it when we come right back. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Hey, Monday night in SCARBOROUGH COUNTRY, a firsthand look at Saddam‘s torture tactics with the man who made a documentary about it featuring video of some of Saddam‘s worst atrocities. 

But we‘ve got more SCARBOROUGH COUNTRY straight ahead.

(COMMERCIAL BREAK)

SCARBOROUGH:  And now I want to follow up on last night‘s discussion of our gas prices and mention one more reason for skyrocketing prices, a shortage of oil refining capacity in the United States. 

While demand for fuel has steadily increased for decades, our ability to refine that fuel has actually dropped.  In fact, the last American refinery was built back in 1976.  And that number of refineries have been cut by more than half since 1980.  While this contributes to less supply and higher prices, the biggest factor cited by industry officials for the decline in refining capacity are huge regulatory barriers and costs involved in building and operating a new plant.  That means higher prices at the pump for all of us. 

Hey, we‘ve answered questions from some SCARBOROUGH COUNTRY viewers. 

But if you have burning questions of your own, now you can get answers. 

Just e-mail me at Joe.MSNBC.com. 

We look forward to seeing you Monday night.  Have a great weekend. 

END   

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