updated 12/10/2004 2:08:16 PM ET 2004-12-10T19:08:16

Guest: Judith Miller, Matt Cooper, Hilary Rosen, Tony Blankley, Jeffrey Fogel

CHRIS MATTHEWS, HOST:  With the secretary of defense openly rebuked by troops, President Bush responds to a national guardsman‘s complaint about going into battle with inadequate combat gear.  And a television reporter is sentenced to six months home confinement today for refusing to identify his source.  Will two prominent print journalists go to jail for refusing to reveal their confidential sources in the CIA/White House leak affair?  We‘ll talk to Judith Miller of the “New York Times” and “TIME” magazine‘s Matt Cooper.  Let‘s play HARDBALL. 

Good evening, I‘m Chris Matthews.  One day after troops derided Defense Secretary Donald Rumsfeld for sending them to war with inadequate armor, President Bush defended the soldier‘s complaint.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  The concerns expressed are being addressed and that is we expect our troops to have the best possible equipment.  And if I were a soldier overseas wanting to defend my country, I‘d want to ask the secretary of defense the same question. 

(END VIDEO CLIP)

MATTHEWS:  More on the story later but first two prominent journalists are fighting to stay out of jail in one of the most important freedom of the press cases in years.  Judith Miller of the “New York Times” and “TIME” magazine‘s Matthew Cooper have been subpoenaed to testify before a grand jury.  Yesterday they asked a federal court to rule they don‘t have to reveal confidential sources in an investigation into a leak of a CIA officer‘s name.  Judith Miller, thanks for joining us.  You are on the hot seat.  So is Matt Cooper.  You have both been squeezed real hard by this federal prosecutor FitzPatrick.  Let me ask you.  Why do you refuse to reveal this sources in this case? 

JUDITH MILLER, “NEW YORK TIMES”:  Because, Chris, I think it‘s important that people who work for the government or who work for large corporations feel confident that when they come to Matt and me and to our journalists with stories, but their own jobs on the line or they can‘t reveal their identities, we will protect them.  This is not about Matt and me, this is about the public‘s right to know. 

MATTHEWS:  Your way of saying it, Matt? 

MATT COOPER, “TIME” MAGAZINE:  Yes, I think Judy has it right.  Look we make these promises of confidentiality and our sources need to expect that we‘ll keep them.  And look, Chris, we‘re not asking for something that is wild and unheard of.  Most states in this country have shield laws for reporters.  It‘s a widely spread proposition.  We‘re going to court to solidify what we think is a constitutional right. 

MATTHEWS:  So Judith, if someone comes to you with a hot story you think is important enough to run or you‘re thinking about running and they say to you, I‘m giving this to you on deep background, don‘t mention my agency, don‘t mention the government.  Or you can say high official, whatever.  Your rule is I abide by that deal every time. 

MILLER:  I abide by that deal provided the person inside lying to me and provided that the information the person gives me can be confirmed separately.  We almost never go into print on the basis of just one source.  Especially an anonymous one. 

MATTHEWS:  That‘s the two-source rule from Watergate days that still holds.  Is that the rule for you, Matt?

COOPER: Yes, I think that‘s basically right.  You make these promises at the beginning of the conversation. 

MILLER:  Sure, it‘s called background. 

COOPER:  You start talking and you don‘t know what you are going to hear most of the time.  You don‘t know in advance if somebody is going to drop a bomb on your lap. 

MATTHEWS:  Let me ask you, Judith, this question, would releasing the information you have in your heart and head right now put someone in danger of criminality, of being charged with a crime? 

MILLER:  Chris, I can‘t address that because it‘s part of the information that is still a question of it‘s sealed, it‘s all before the grand jury.  I‘m afraid I‘m just not at liberty to discuss that.  Later on, I hope I can. 

MATTHEWS:  Let me ask you a blanket question.  Would anything you know and don‘t want to say about your source embarrass that source right now if it were to be known who that source is? 

MILLER:  Because this is such a litigious matter at the moment, I can‘t discuss an alleged source at this point.  I hope you understand there‘s a lot on the line...

MATTHEWS:  I do, but the people watching have to learn this.  That‘ s why I‘m doing it in this sort of Socratic manner here.  It‘s a little bit primitive but I‘m trying to get the point across.  Matt, is that your view, that you will not release any information, hints at who this source is? 

COOPER:  Yes, I‘m trying not reveal the confidence in any way that is (UNINTELLIGIBLE) oblique .  What is criminal and what is not is hard to decipher in this case.  There is a statute that makes it a crime to leak the name of a CIA operative but it‘s hard to prosecute someone under it.  No one‘s ever been prosecuted under it, the standard you need to meet, did the person have intent to leak name, were they of a sufficient rank to have known the name in the course of their work.  I think it‘s entirely likely that at the end of this whole process, the only people who do any time in jail are journalists and that the leaker, even if discovered will never do a day. 

MATTHEWS:  Let‘s remind everybody what the story is about.  It‘s all foggy as hell right now except that somebody gave a name to columnist Robert Novak, of Valerie Plame, the wife of Joe Wilson who had written an article in the “New York Times” a couple of days before this in which he accused the administration of covering up information that would have nullified the claim that Saddam Hussein was buying radioactive material from the government of Niger.  Right?  That‘s the story. 

COOPER:  You got it. 

MATTHEWS:  What do you make of the White House measure of telling its staff people who might be involved in this case, this leak, to go ahead and give away any deal they‘ve made with the reporter.  You are free to say what you want, you‘re free to give me away.  What did you make of that? 

COOPER:  I think both Judy and I had a feeling that these written waivers that a lot of government people were asked to sign are not worth the paper that they are written on.  They are made—clearly, if your boss hands you something and says sign it, you fear losing your job.  I think those are made under duress and I don‘t think we can consider those written waivers to be valid. 

MATTHEWS:  So if the president or chief of staff Andy Card tells all their staff people who might be involved in the leak case to give away their rights of confidentiality, what do you make of that, Judith Miller?

MILLER:  Well that‘s the problem.  That is not a voluntary waiver of confidentiality.  When does a White House person‘s boss have the right to waive my right of confidentiality to my source.  By the way, Chris, these waivers are becoming more common simply because, you know, employers do understand that they can tie up their employees and make them fearful that we won‘t protect them if they are forced to sign them.  So I see it as another way of suppressing information and making sure that only people who are authorized to discuss classified information do so. 

MATTHEWS:  So let me just give you both a chance to make your case because I obviously sympathize with your positions because professionally I have to, because you have to do the job.  Matt, you first because you are sitting in front of me. 

What kind of journalism would we have in this country if there was no sourcing, if everything was on the record? 

COOPER:  I don‘t think you‘d have a lot.  I think most of the major investigative stories of recent memory, whether Watergate, Enron, other things, stem from the use of sources who demand a degree of confidentiality.  And those are promises that we need to keep and intend to keep. 

MATTHEWS:  So it would be a case where every government agency from the president down will be issuing press releases all day and that would be taken as fact. 

COOPER:  I think you‘d have that.  And can I just add, Chris, that for the last 30 years, I think we‘ve had a social peace between prosecutors and journalists.  There have been a handful of cases where journalists have gone to jail over the last three decades since the Supreme Court did a big decision on this but most prosecutors have laid off journalists and that has been good for the system.  I‘m sorry that seems to be changing now. 

MILLER:  Judith, you‘re a nice lady, I have known you a long time.  You are gutsy as hell, you have been in some weird situations around the world covering all kinds of wild stuff in the Middle East and sources which have been tricky and I may have disagreed with some of your accounts because I just disagree with people a lot of times but this thing about facing jail, of going to Rikers or some place like that and meeting people you don‘t really want to meet in those circumstances.  Does that in any way make you think that maybe when it comes down to it, I will buckle? 

MILLER:  Nope.  I don‘t want to go to jail, Matt doesn‘t want to go to jail, but I think, certainly for me and I believe for him, the principle at stake here is so important.  We spoke about the waivers and the proliferation of leak investigations, look at the proliferation of classifications.  Look at how much information post-9/11 has become secret.   Where the wastebasket is in an office virtually.  We have a situation in which it‘s increasingly difficult to get government officials to discuss national security information.  It‘s all the more important today that journalists stand up for this principle because it is part of our job as informing the public. 

MATTHEWS:  It‘s getting more and more like the old Ethiopian press where they would say the lion of Judah said today and it was Haile Selassie.  And every newspaper, every day on the right-hand side had what he declared that day.  Is that where we‘re headed if we don‘t have confidentiality? 

COOPER:  I think all you get is the party line.  That‘s the stuff for communism and totalitarianism.  It‘s not what we want.  Look, putting us in jail is not going to reveal who leaked to Robert Novak.  That‘s how far afield this crazy case has gotten. 

MATTHEWS:  Because it was his column that raised this whole stink. 

COOPER:  Now look, I think Robert Novak‘s got as much right as we do or anyone, to protect their confidential sources.  I‘m not saying he should cough it up, but I‘m just saying that we are now in this blunder bust case where people are getting dragged in. 

MATTHEWS:  Has he called you or sympathized with either of you? 

COOPER:  No.

MILLER:  No. 

MATTHEWS:  Has he called you Judith and said I‘m sorry you‘re taking the hit.

MILLER:  No, he hasn‘t.  And I do think it‘s ironic that journalists sit with him in these talk shows all the time and nobody every brings up the unmentionable.  Well, I think that if Matt and I have to go to jail, at some point one of our colleagues may say, hey, Bob, what about this Valerie Plame business.

MATTHEWS:  I think it would be like trying to get a hamburger away from my dog.  I don‘t think—I‘m just guessing, he is a hell of a reporter, but he‘s not going to share. 

And we‘ll be right back with Judith Miller and Matthew Cooper. 

And later, President Bush weights in on Defense Secretary Donald Rumsfeld run in yesterday, here‘s a hot one, with U.S. troops in Kuwait. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We are back with “Time” magazine‘s Matt Cooper.  I‘ve been talking movies with Matt.  He and Judy Miller of the “New York Times.”

Let‘s take a look at a piece of tape I have here.  Recently I had on Jim Taricani, who today was sentenced to six months of sort of the bad kind of home leave.  He‘s not allowed to leave his house for six months because he has a very serious heart condition.  He‘s from WJAR in Providence, Rhode Island.  Lets take a look at what he said, when he was on about his way of looking at confidential sources. 

(BEGIN VIDEO CLIP)

JIM TARICANI, WJAR-TV REPORTER:  Before working on a sensitive story and we‘re meeting with a source, and we that sources is going to want to remain confidential, before we even get the information, we come to an understanding.  And at that point, the source usually requires a promise of confidentiality.  And if the reporter feels that it‘s important enough that we give him that promise, we make that promise.  And once it‘s made, it can‘t be broken. 

(END VIDEO CLIP)

MATTHEWS:  Is that how you see it, Matt? 

COOPER:  Yes, I think that‘s right.  And, you know, Taricani is a—I think our case has a degree of kind of moral ambiguity because of the—leaks clearly were not those of whistle blowers.  You know, trying to do some social good.

MATTHEWS:  They were trying to hurt the other side of this public argument.

COOPER:  And look, clearly, there is kind of a moral ambiguity to it.  But Taricani‘s case is almost a classic whistle blower case.  I mean, he was given this tape of a getting a bribe.

MATTHEWS:  They FAX‘ed (UNINTELLIGIBLE) a videotape of him—of the government official working for Cianci up in Providence.  And the mayor‘s office—taking an envelop as part of the deal. 

COOPER:  No, it‘s unbelievable.  And Taricani does this great public service getting this tape...

(CROSSTALK)

MATTHEWS:  Putting it on the air.

COOPER:  It leads to the mayor being put in jail. 

MATTHEWS:  He‘s in Fort Devens now for a bribe.

COOPER:  Exactly.  And the fact is, all that stuff is settled and they‘re still like going after the reporter who did a lot of good in bringing this case to light. 

MATTHEWS:  What is that about, Judith Miller? 

Why do you think they‘re going after the good guy in a case like this, the reporter who puts on the air evidence so the public can see it with for their own eyes of corruption? 

MILLER:  Well, I think in this case it was kind of a judge‘s peek.  That information that he didn‘t want disclosed got disclosed.  And I do think this is the absurd kind of situation that develops with these leak cases or with judicial decisions about what can and cannot be made public. 

I mean, poor Taricani.  I mean, he was absolutely doing the right thing, it had a very good out come for the public.  And once again, for a while it looked as if he might be in a cell quite close to the official who actually took the bribe.  So on one hand, it‘s miraculous that he‘s not going to have to go to jail, fortunately.  On the other hand, six months of house arrest means he‘s out of business.  He can‘t do his job for six months. 

And I think that‘s part of what I am worried about, I think Matt is worried about, is the chilling affect of all of this litigation, meetings with lawyers, the signal it sends to perspective sources and other journalists.  It‘s very time consuming.  It‘s very worrying.  It‘s very difficult for our families. 

MATTHEWS:  Has this attorney, Fitzpatrick, ever sent any messages to you people privately, I mean this, you‘re going to the can. 

MILLER:  It‘s Fitzgerald. 

MATTHEWS:  Fitzgerald.

MILLER;  Patrick Fitzgerald. 

COOPER:  Please get your Irishman...

(CROSSTALK)

COOPER:  No.  No. 

MATTHEWS:  It‘s all public business.  It‘s all transparent.

(CROSSTALK)

COOPER:  ... in public.  And you know, I gave limited testimony.  This is—this is my second go around with this.  I gave limited testimony about my conversations with the vice president, chief of staff Louis Libby after I got the personal, explicit, unreserved assurance that he was fine with me talking about our confidential conversation.  I‘d do it again.  I felt fine about that.  But sure enough, about four days after I gave this deposition, Fitzgerald came back at me with a very sweeping demand for basicly, open my notebook.  And that has proven very difficult to...

MATTHEWS:  By the way, getting a name wrong is an old Irish trick by the way.  So, it‘s fair game here. 

Yesterday I interviewed King Abdullah, Abdullah of Jordan.  And asked him whether the Ayatollah Sistani, the religious leader expected to dominate Iraq‘s election and thereafter, is secretly loyal to Iran.  Here‘s...

(BEGIN VIDEO CLIP)

MATTHEWS:  Are you concerned that the Ayatollah Sistani is Iranian born.  It‘s said that he speaks with a Persian accent, with an Iranian accent.  He seems like he comes from Iran more than just because of his birth.  Are you concerned that he may have loyalty to Iran?

HIS MAJESTY KING ABDULLAH II, KING OF JORDAN:  I think that is the feeling in our part of the woods, that that‘s the case, that there is a relationship with Iran.  He does have a lot of following on the streets in Iraq.  But his allegiance at the end of the day would be to Iran and not Iraq. 

(END VIDEO CLIP)

MATTHEWS:  What do you make of that, Matt? 

COOPER:  It‘s...

MATTHEWS:  We are about to see a guy elected in a country we saved and liberated.  And their going to become a client state of Iran.

COOPER:  A lot of unintended consequence out of this thing. 

MATTHEWS:  Judy.

MILLER:  I don‘t share the King Abdullah‘s view.  I think everything we‘ve seen from Ayatollah Sistani so far, indicates that he is very much a kind of Iraqi-style politician and that he wants what the Bush administration says it wants, which is democracy, which translates as Shia rule.  And I think the United States better get used to that, because a Democratic vote in Iraq is...

COOPER:  Shiite. 

MILLER:  Right.  And January 30 is likely to produce a... 

MATTHEWS:  Well, we‘re not ready for a second set of Mullah‘s ruling the world, especially in tandem. 

Let‘s take a look at had a he said when I asked him about Chalabi, Ahmed Chalabi.  I said, I can imagine him standing in front of a line of elected officials all in traditional costume, him wearing some sort of gold suit and being the oil minister.  Lets take a look at this.  This is about Chalibi. 

(BEGIN VIDEO CLIP)

MATTHEWS:  Can you imagine picture sometime in late January of a photograph of the new government of Iraq with a picture of everyone in their, right in the middle is the new oil minister, Ahmed Chalabi? 

ABDULLAH:  Quite conceivable.  And it would be interesting how...

MATTHEWS:  Wouldn‘t it be odd to have a wanted man as oil minister of a country?   

ABDULLAH:  It‘s would interesting how American policy will deal with that.  Because I believe that he has very good relationships with Iran.  And I think that he‘s played people off and I think America will lose out. 

(END VIDEO CLIP)

MATTHEWS:  Judith, he says that America will lose out if Chalibi is the match maker in anyway between Iran and Iraq in a new government. 

MILLER:  Well, Chris, as I have consistently said, I think the United States has underestimated Ahmed Chalabi.  I think that it would behoove the Iraqis to have good relations with their neighbor. 

You know, I covered the war in which Iran was at war with Iraq, in which over a million people died.  I don‘t think that‘s in anyone‘s interest, I don‘t think it‘s in the interests of stability in the region, and I think that Ahmed Chalabi, despite everything that was done to him in May, the raid on his house, remains basically pro-democratic, pro-Western, pro-American. 

MATTHEWS:  So American soldiers died and we gave up our treasury in the hundreds of billions of dollars so that Ahmed Chalabi could become oil minister of Iraq? 

MILLER:  No no, so that the Iraqi people can choose whoever they want to be their leaders, and there is no telling at this point who will emerge.  However, it appears that Mr. Chalabi has—Dr. Chalabi has gotten a slot on the Sistani-blessed list.

MATTHEWS:  I would say oil minister or finance minister.  I have been

betting on him.  He‘ll be the only guy in a suit.  Oh, I‘m just a cynic.  I

·         Matt, it drives me up the wall to think...

(CROSSTALK)

COOPER:  Well, I‘m just amazed at how many lives this guy Chalabi has had.  I mean, after helping push us into this war, that he is now going to pull out on top. 

But, you know...

MATTHEWS:  It sure pays to lobby the vice president‘s office, doesn‘t it?

Anyway, thank you very much, Judy Miller.  Thank you, Judith Miller. 

Good luck in this case, obviously. 

MILLER:  Thank you.

MATTHEWS:  And Matthew Cooper, obviously good luck in this case. 

Up next, President Bush weighed in today on those U.S. soldiers who berated Defense Secretary Donald Rumsfeld the other day.  And tomorrow, former President Jimmy Carter will be my guest, as I‘ve said all week, sitting right there where Matt is.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  One day after Secretary of Defense Donald Rumsfeld was sharply questioned by National Guardsmen for inadequate equipment in Iraq, President Bush has now weighed in.  HARDBALL correspondent David Shuster reports.

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  While shoring up his embattled Treasury Secretary John Snow, the president today let Defense Secretary Donald Rumsfeld fend for himself. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  The concerns expressed are being addressed, and that is we expect our troops to have the best possible equipment.  And if I were a soldier overseas wanting to defend my country, I would want to ask the secretary of defense the same question, and that is, are we getting the best we can get us? 

SHUSTER:  Has the president asked Secretary Rumsfeld that question?  White House officials say, of course.  But the verbal confrontation between soldiers and Rumsfeld landed on the front page today of every major newspaper in the country. 

On Wednesday, this was supposed to be a pep rally.  Instead, with the help and encouragement of an embedded reporter, an Army specialist asked. 

SPC. THOMAS WILSON, U.S. ARMY:  Now, why do we soldiers have to dig through local landfills for pieces of scrap metal and compromised ballistic glass to up-armor our vehicles, and don‘t we have those resources readily available to us? 

(APPLAUSE)

DONALD RUMSFELD, SECRETARY OF DEFENSE:  I missed the first part of your question.  And please, could you repeat it for me? 

SHUSTER:  The soldier did.  Rumsfeld replies...

RUMSFELD:  It isn‘t a matter of money.  It isn‘t a matter on the part of the Army of desire.  It‘s a matter of production and capability of doing it.  As you know, you go to war with the Army you have, not the Army you might want or wish to have at a later time. 

SEN. CHRISTOPHER DODD (D), CONNECTICUT:  I don‘t think the response that you go to war with the Army that you have got is a very good answer at all. 

SHUSTER:  Democrats are pointing out the war began at a time chosen by the administration, and armor shortages have been a problem from the beginning.  Early in the war, military leaders testified the administration sent tens of thousands of troops into Iraq without protective body plates, and while that issue has since been solved, vehicle armor has not. 

A year ago, soldiers showed NBC News their own improvised efforts to strengthen humvees and trucks, efforts that continue today. 

Another vulnerability seems to be sustaining U.S. troop levels in Iraq. 

UNIDENTIFIED FEMALE:  We both joined a volunteer Army.  Currently, I‘m serving out of the stop-loss program. 

SHUSTER:  That programs enables the military to extend the enlistments of thousands of solders, stopping the military from losing them.  Most of those soldiers are not happy about it. 

RUMSFELD:  It has been used as little as possible, and my guess is that it will continue to be used as little as possible, but that it will continue to be used. 

SHUSTER:  One of the reasons is because of the troop levels needed to safe-guard January‘s Iraqi elections.  Iraqi police were supposed to take the lead, but officials say those forces are simply not ready. 

(on camera):  And that means more U.S. troops will be in Iraq next month needing armor, and now some of those soldiers seem willing to state publicly what some lawmakers have been arguing for the last year and a half, that the Bush administration went into Iraq unprepared. 

I‘m David Shuster for HARDBALL, in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster.  Up next, Tony Blankley and Hilary Rosen on that situation in Iraq.  Plus, today‘s decision by the Canadian Supreme Court that same-sex marriage is constitutional in that country.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  This half-hour on HARDBALL, Canada‘s Supreme Court decides that same-sex marriage is constitutional.  Democratic advocate Hilary Rosen and Tony Blankley of “The Washington Times” will be here.  Plus, a legal fight from a National Guardsman over the Army‘s stop-loss program.

But, first, let‘s check in with the MSNBC News Desk. 

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

Tony Blankley is the editorial page editor of “The Washington Times” and Hilary Rosen is a Democratic advocate and former head of the Recording Industry Association of America.

Let me ask you about this thing we just talked about.  It is unusual to see someone like the secretary of defense being brought down by some trooper out there, a Guardsman, asking him, how come don‘t give us armor?  What did you make of that moment and what does it tell us about our morale and situation in Iraq? 

TONY BLANKLEY, EDITORIAL PAGE EDITOR, “THE WASHINGTON TIMES”:  Well, I think it‘s a wonderful moment. 

I‘m a great admirer of Rumsfeld, but I think it‘s wonderful that the troops can speak back and feel that they can speak back.  I can‘t imagine many armies in the world, I think including the British, where the ranks would think that they can do that.  And they can and get away with it. 

(CROSSTALK)

MATTHEWS:  Officer...

(CROSSTALK)

(LAUGHTER)

BLANKLEY:  Yes.  So, I think it is healthy. 

MATTHEWS:  I think there might be a quick reaction from the senior officers.  But you‘re right.  He was a Guardsman, too.  And part of this war is that it‘s being fought by Guardsmen and reservists, who have the chutzpah to address—he wouldn‘t have said that to the president.  He wouldn‘t have said it to a commanding officer, probably.  But there he was.

HILARY ROSEN, DEMOCRATIC STRATEGIST:  Well, he might have.

But I think there is a little too much self-congratulation on the part of administration here.  The substance of what he said is, we‘re out here defenseless and you guys are keeping us defenseless.  And the president today reacting as though, gee, I would want to know that too if I was a soldier, as if he had absolutely no responsibility for the situation at all, I thought it kind of appalling. 

BLANKLEY:  Wait a second.  General Myers testified about a month ago on this issue in Congress.  They have known the problem.  They have got it at maximum production.

And I think at the end of this year, next year, there are still going to be like 7,500 armored Humvees.  And the target is 83 or something.  So...

ROSEN:  This time next year, Tony? 

BLANKLEY:  Yes. 

ROSEN:  Come on.  How many how many people are going to be vulnerable and maybe dead or injured this time next year?

(CROSSTALK)

ROSEN:  They went in there unprepared.  They didn‘t have enough equipment.  And now they are saying, aren‘t we great because we‘re letting our guys complain about it? 

(CROSSTALK)

ROSEN:  Aren‘t we great?  We‘re letting our guys complain about it.

MATTHEWS:  You want to increase the defense budget.  Let me get this straight.

(CROSSTALK)

ROSEN:  I want our guys to be protected or I want this war to be done right.

(CROSSTALK)

MATTHEWS:  You are defending the slowness of the armor.

(CROSSTALK)

MATTHEWS:  Here‘s one of the great liberals of our time saying more money for defense. 

BLANKLEY:  Look, I‘m just saying that this isn‘t obviously a position where the government is saying let them go in, where we can press a button and make it happen.  They press the button and they can‘t quite fix it.  And it‘s a horrible situation.  And it says something about our under-industrialization now, as opposed to World War II, when we could kick up production a lot of faster than we could then.

MATTHEWS:  Different war, too. 

BLANKLEY:  What?

MATTHEWS:  Different war.

(CROSSTALK)

BLANKLEY:  We were able to kick up to 50,000 aircraft production a year by 1945.  And we don‘t have the base now to do this.  This is the Pat Buchanan argument. 

(CROSSTALK)

ROSEN:  They have consistently publicly and privately underestimated what it would take.  And they‘re leaving our guys vulnerable.  And everybody knows it.  And the president should have taken responsibility today and he didn‘t. 

MATTHEWS:  OK.  There‘s an ideological question here that goes beyond arguments over details.  And this is a detail, because it should have been thought about before the war.  That we were going go to fight a different kind of war, that were going to through kind of a blitzkrieg, head into that country, take it over, decapitate it, that people were going to cheer us. 

It turns out that people were going to set land mines for us.  And that‘s the difference.

BLANKLEY:  Yes.  Look, yes, there is no doubt that they didn‘t anticipate exactly the kind of enemy they were facing.  And we‘re paying a horrible price.  And the young guys, the amputees out at Walter Reed are paying the price for us having misjudged to some extent the kind of weapons that would be coming against them for as long as it has.  There is no doubt about that.  I mean, but to suggest...

ROSEN:  The president has never said it and neither has Rumsfeld. 

BLANKLEY:  But to suggest some sort of ill will or maliciousness on the part of government not trying to do all they can now and for several months trying to catch up, I think that‘s unfair. 

MATTHEWS:  I guest one charge could be made is, why didn‘t Rummy do this from the day he got into office?

BLANKLEY:  Do what?

MATTHEWS:  Start building this armor, putting this armor on these vehicles.

BLANKLEY:  I mean, because they weren‘t expecting to need anything like this number of Humvees armored.  So the production schedule is such as it is.  That‘s all.

(CROSSTALK)

MATTHEWS:  Let me ask you about something you might agree on.

Matt Cooper, “TIME” magazine, a very funny guy, actually, he does a lot of stand-up comic, in addition to his professional work.

(CROSSTALK)

MATTHEWS:  I guess that is also his professional work.

BLANKLEY:  Yes. 

MATTHEWS:  And of course Judith Miller, who has been a Middle East correspondent covering the biggest stories of our time for 20-some years now, both refusing to give away their sources.  You‘re an editorial page editor.  You have to deal somewhat even with opinion columns with sourcing.  What is your view?  Should they keep quiet? 

BLANKLEY:  I have tremendous admiration for their guts.  I spend all day talking to people on background.  And I would like to think, but I don‘t know, that I have the guts to do...

(CROSSTALK)

MATTHEWS:  What does on background mean?  I feel like Brian Lamb here, but explain it.  What does on background mean?

BLANKLEY:  Well, I‘m not going to identify the source and we‘ll agree on characterization.

(CROSSTALK)

MATTHEWS:  So a high administration official, somebody close to the administration, those kind of things. 

(CROSSTALK)

BLANKLEY:  Yes. 

And so I have tremendous respect for their guts and integrity.  On the other hand, there is no federal privilege.  There is a limited privilege in most of the states.

MATTHEWS:  Well, should there be? 

BLANKLEY:  That‘s a different question.  The point is...

MATTHEWS:  It‘s a judgment by the courts whether you need to have...

(CROSSTALK)

MATTHEWS:  Isn‘t there a judgment here that needs to made by the courts that you need confidentiality to have a free press? 

BLANKLEY:  No, because that has been decided by the Supreme Court, that there is no federal First Amendment constitutional privilege. 

There are a lot of state privileges, and by statute.  We don‘t have a federal one by statute.  So, anyone who has been in this business knows that in fact you don‘t have an absolute privilege.  You don‘t have any federal privilege.  So you are taking a certain chance.  Once in a while, very good reporters, like these two, are getting swept up in it. 

But the policy debate is whether there should be an absolute privilege.  You don‘t even have an absolute privilege between lawyer and client or priest and penitent.  I don‘t think there should be an absolute privilege, but that‘s a policy matter.  It‘s not a legal matter.  And Congress has never passed it. 

ROSEN:  We don‘t agree, because he is saying this is all about the process.  And the Supreme Court, actually, case is much narrower than that. 

The bottom line for the American people is that someone at the White House told on a CIA agent.  And it‘s the reporters paying the price, not someone in the White House.  And that‘s not fair. 

MATTHEWS:  And the person who wrote the column, Robert Novak...

ROSEN:  Robert Novak.

MATTHEWS:  ... who has been around forever, is not even involved in the legal case, apparently.

ROSEN:  Not even involved, or if he is involved, he is certainly not taking the hit that these two are. 

MATTHEWS:  Is this an important enough case to have this kind of law come out of this?  In other words, is it worth all the turmoil about whether reporters should divulge their sources in this case?  Is this case worthy of this to be one of these landmark decisions?

BLANKLEY:  It‘s an important decision. 

I did a column right after this happened, after the leak happened, saying that we ought to get the people who did it.  They were revealing a covert agent.  And I got a little...

MATTHEWS:  Get the White House people or the high administration official.

(CROSSTALK)

BLANKLEY:  Yes, that these people needed—whoever did the leaking needs to be found out and prosecuted. 

And so it‘s a big deal regarding the leakers.  And it‘s tragic that the reporters who did their work are caught up in this. 

MATTHEWS:  Let me ask you question.  Does anyone—you first, Tony—does anyone out there believe it was OK in terms of the way we run our country to leak the name of a secret agency of the CIA in order to score a political point that hurts the other side? 

BLANKLEY:  I certainly don‘t.  And I don‘t think most people to, although, at the time, there were some people around town, some Republicans, I hate to say, who were kind of scoffing at this.  But I thought it was a big deal.  I think most people think it‘s big deal.

MATTHEWS:  Like saying she deserves what she gets, that sort of thing. 

BLANKLEY:  Yes.  I think that‘s a terrible mistake.  And we have thousands of covert agencies.  And we cannot have a principle that you can undercut them for any reason. 

MATTHEWS:  I remember George Bush Sr. once said, that is about the worst thing you can do. 

BLANKLEY:  He did.

MATTHEWS:  Is to out somebody who is defending their country and risking their life undercover, really undercover.

We‘re coming right back with Hilary Rosen and Tony Blankley on Canada‘s Supreme Court decision—this came out of nowhere—that same-sex marriage in that country above the border is constitutional. 

And don‘t forget, sign up for HARDBALL‘s daily e-mail briefing.  Just log on to our Web site, HARDBALL.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re coming back with Tony Blankley of “The Washington Times” and Democratic advocate Hilary Rosen.  And later, a legal challenge to the military‘s stop-loss program.

HARDBALL returns after this.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Tony Blankley and Hilary Rosen.

Now, Hilary Rosen, I‘m going to pretend I‘m John Kerry now.  You‘re gay.

ROSEN:  I‘m...

(CROSSTALK)

MATTHEWS:  OK.  And you‘re not.

(LAUGHTER)

MATTHEWS:  Let‘s go.  Let‘s go with this question, because I want to establish our sides here.  It‘s like an MBA course.  You have your name here, gay, not gay.

(LAUGHTER)

MATTHEWS:  Let me ask you, this decision by the Canadian Supreme Court to say that it‘s constitutional.  Up in that country to the north, they ask the courts before they pass a law.  But apparently they have got the votes I guess to do it. 

ROSEN:  I think they have the votes.  But gay marriage has been legal in Canada for a couple of years in Toronto, and so this is not such a new concept to them.  So, they had been planning for the last two years to sort of spread this nationally. 

MATTHEWS:  So I also saw that there is action on that front.  There is movement to make it legal in Ottawa, which is obviously Ontario Province and in also Quebec Province and in British Columbia, out west, where all the people live, by the way.  Those are the three big provinces.

So you figure it will pass, right?

ROSEN:  Well, it‘s going to pass eventually everywhere.  It‘s just a matter of getting used to it.

MATTHEWS:  Let me give you some bad news, OK?  This is the United States.  The is the 50 states here. 

(LAUGHTER)

ROSEN:  Eventually.

MATTHEWS:  These were the votes carried—these were the votes in the last election when they had it on the ballot, where they had same-sex marriage.  Arkansas, 75 against, 25 for.  I‘ll give you the numbers.  These are the votes against, Georgia, 76, 75 in Kentucky, 59 in Michigan—that‘s pretty liberal—Mississippi, 86 against gay marriage or same-sex, 66 Montana, 73 percent in North Dakota, 62 in Ohio, where it hurt the candidate of the Democratic Party, Oklahoma, 76 percent, 57 Oregon, 66 -- this is almost a Rorschach test for political conservative, isn‘t it, Tony?

BLANKLEY:  Yes. 

MATTHEWS:  You can sort of read the red-blue in each one of these states. 

(CROSSTALK)

BLANKLEY:  But even the blue states are pretty pink. 

(CROSSTALK)

MATTHEWS:  To use a...

(CROSSTALK)

MATTHEWS:  What do you think?  Are we unlike Canada in one more way tonight? 

BLANKLEY:  Pardon?MATTHEWS:  Are we unlike Canada in one more way?

BLANKLEY:  Yes.  Yes.  I mean, there is no question about it.  It‘s not going to happen in the United States any time soon and it‘s essentially already there in Canada, and I think there is a big cultural gap between the two countries. 

(CROSSTALK)

MATTHEWS:  Are we going to have people coming south—or going up there to get married? 

ROSEN:  I don‘t think so, because there is not much point in it.  Your marriage really is mostly useful for a series of benefits that you get from the government.  And if our government doesn‘t extend it—but the interesting thing, no question that the election results happened that way.

The interesting thing was that 60 percent of people in the exit polls in that election said that they wanted to do something that got people on the way to some equality and...

(CROSSTALK)

MATTHEWS:  Once you get away from the cultural issue and get more toward the economic and the legal rights thing, you got a chance. 

ROSEN:  And more people don‘t want this to be political than want it to be political. 

MATTHEWS:  Good luck. 

ROSEN:  I think that‘s the issue.

MATTHEWS:  Good luck on that one.

(LAUGHTER)

MATTHEWS:  Let me ask you about that.  I love giving you this one. 

Here is a big fat pancake for you to make right now with a skillet.

BLANKLEY:  OK.

MATTHEWS:  Who should be head of the Democratic National Committee? 

Howard Dean, I put the name forward.  He‘s running.

BLANKLEY:  Well, look, I was a Goldwaterite in ‘64.  We did what Howard Dean wants to do now for the Democrats.

MATTHEWS:  Go core.

BLANKLEY:  Go back to your core principles, redefine them, re-explain them to the country and try to educate the public to your core principles. 

We were not the majority in ‘64, Republicans.  It took until 1980 to elect Reagan and ‘94 to take Congress back.  It‘s a very long march.  Most elected politicians are not going to want to do that.  It tends to be outsiders.

(CROSSTALK)

BLANKLEY:  It tends to be outsiders like Howard Dean who have got to do that.

(CROSSTALK)

MATTHEWS:  Do you think Dean makes sense to go pure?

ROSEN:  It‘s a good analogy, though, because if it weren‘t for Goldwater, you wouldn‘t have gotten Reagan.  And so that... 

(CROSSTALK)

MATTHEWS:  You got Nixon twice before that.  Just be careful there.

ROSEN:  Right.  But it was a path, anyway, for them to stay in.

MATTHEWS:  Do you think the Democrats should go pure to their core or do they go to the middle and try to me-to the Republicans? 

ROSEN:  I think we should go with someone who goes with core Democratic principles.  And I do think those principles are about fairness.  I think they‘re about helping on economics.  I think they are about recognizing the environment.  I think that a lot of candidates...

MATTHEWS:  How about recognizing West Virginia and Ohio?  You guys going to recognize them or just kiss them off again?

ROSEN:  There‘s no question there‘s something attractive about those governors in the middle of the country.

MATTHEWS:  I just want to see Hillary, your pal, the other Hillary, campaigning in Ohio.  And I‘m going to think she‘s for real, because that is where he has to win and prove herself, right?

ROSEN:  And you know what?  She could. 

(LAUGHTER)

MATTHEWS:  With your help. 

(LAUGHTER)

MATTHEWS:  Thank you very much, Hilary Rosen, Tony Blankley. 

When we return, an Arkansas National Guardsman who sued over the Army‘s stop-loss program is headed back to Iraq.  We‘ll talk to one of the lawyers who worked on the case.

And don‘t forget to check out Hardblogger, our political blog Web site.  I love these words.  Just go to HARDBALL.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  A federal judge ruled yesterday against a National Guardsman who sued over the Army‘s so-called stop-loss program.  David Qualls of Arkansas National Guard is going back to the front lines in Iraq this weekend.  He says he‘s being forced to extend his tour and was tricked by the Army into believing he was only signing up for one year. 

Jeffrey Fogel is the legal director for the Center For Constitutional Rights, the organization that represented David Qualls.  And Colonel Ken Allard is an MSNBC military analyst. 

Let me go to Jeffrey Fogel.

Sir, thank you for joining us. 

JEFFREY FOGEL, CENTER FOR CONSTITUTIONAL RIGHTS:  Quite welcome. 

MATTHEWS:  Let me ask you, what is this stop-loss policy, to begin with?  Is it new?  And is it fair? 

FOGEL:  Well, the military instituted a procedure in 2002 allowing them to involuntarily extend the terms of contracts of people enlisted in the Army, particularly the Army National Guard.  It was premised, according to them, on a statute that Congress passed some time ago authorizing the president to suspend certain provisions of law when it was deemed necessary for the national defense. 

We don‘t believe the law is applicable.  We certainly are convinced that the procedures that are being used to recruit people are unfair, in the sense that people being enlisted into the National Guard are not being told right up front, look, even though your contract is for a term of years, that term could be extended for the convenience of the service.  We owe it to our soldiers to be honest and fair with them. 

MATTHEWS:  Can they read the newspapers?  FOGEL:  Can the soldiers read the newspapers? 

MATTHEWS:  Yes, the recruits.  Don‘t they know what‘s going on by just reading the papers and knowing what is going on? 

FOGEL:  Well, one would hope so.  But, nonetheless, it seems to me beholden on the government when it deals with its citizens and people—particularly, we‘re talking here about people who have voluntarily enlisted, some of whom knew that they were going to war. 

MATTHEWS:  OK.  So you‘re saying this is fine print, that it‘s not really made clear to the recruit. 

FOGEL:  Well, in the case of David Qualls, there was nothing on his contract which suggested otherwise, nothing whatsoever. 

MATTHEWS:  Let me go to Colonel Allard.

Do you have a different view or the same view of this, that that is something that is not made clear to the recruit? 

COL. KEN ALLARD, NBC MILITARY ANALYST:  Well, sometimes, things are deliberately made not very clear to the recruit.  It depends very, very much on the integrity of the recruiting officer who does that. 

I will just tell you, though, that, more than anything else, what you have to remember is the fact that when you are in uniform, for any reason, in time of national emergency, they do have the right to go ahead and involuntarily extend you.  That said, that is something that with an-all volunteer force you have got to apply very sparingly and very carefully and only under maximum duress. 

MATTHEWS:  What about the old phrase, for the duration?  Is that still in effect, Jeffrey?

FOGEL:  Well, first, let‘s clear up something.  We don‘t have an all-volunteer force.  All of these people who are being held involuntarily in the service, and I‘ve heard numbers up to 40,000, are not there voluntarily.  So this is not an all-volunteer Army. 

MATTHEWS:  Well, they joined the Guard. 

FOGEL:  Well, yes, they join the Guard.  And then they‘re kept as if they were in involuntary servitude.  There are up to 40,000 people in the National Guard and many of them serving in Iraq who are not there voluntarily, who wish to be home with their families and continuing with their careers. 

MATTHEWS:  But it is the military.  And isn‘t the military primarily intended to do combat work?  Doesn‘t that come with the notion of putting on a uniform?  You may be called to service and you may be called to the front. 

FOGEL:  Absolutely. 

But then what we‘re saying here is that it is beholden on the government simply to tell the recruits that they may be subject to this other policy which would extend their contract for 18 months or two years and keep them in harm‘s way for those two years, beyond the term of their contract.  This is a question of fundamental fairness and of fraudulent inducement into enlistment. 

(CROSSTALK)

MATTHEWS:  Let me ask you—that‘s strong words. 

Let me ask you this, Ken.  It seems to me, one of the great scenes that I thought was fairly honest in Michael Moore‘s movie “Fahrenheit 9/11” was, they would had these really well-dressed Marine guys in their dress uniforms going around shopping centers.  And if they met a bunch of kids, they would say, what are you interested in?  And of course the young kids would say, music.

And they would say great.  You can have a career in the military in the music world. 

(LAUGHTER)

MATTHEWS:  I mean, obviously, there‘s only so many bands that these kids might be inducted into, if they‘re prepared and trained in the instruments they want to play.  Does that go on all the time, this sort of, yes, whatever you want, kid, now sign here?

ALLARD:  I would just say, Chris, that I‘m sure that we have the best people doing our recruiting. 

That said, the old principle of caveat emptor absolutely applies.  And I‘ve heard some those same horror stories that I think you have.  More than anything else, though, you have to understand, the root cause of this particular problem is the fact the military is being more and more hard-pressed to come up with the soldiers, to come up with the Marines, sailors and airmen, that they actually need for this fight. 

And more than anything else, I think what it speaks to is the idea that we have to simply have more people in uniform.  It is just that simple. 

MATTHEWS:  OK, let me ask you, Jeffrey Fogel, your client, Mr. Qualls. 

FOGEL:  Right. 

MATTHEWS:  He is now over—David Qualls—he is over.  He is being sent to the front.  Is that for punishment?  Or is that just what was going to happen if you weren‘t around? 

FOGEL:  No, no.  He was returning to his unit, which is in Iraq. 

MATTHEWS:  Yes. 

FOGEL:  So he‘s just being ordered to return to his unit in Iraq. 

MATTHEWS:  Now, is he still a litigator here? 

FOGEL:  Yes.  The case isn‘t over. 

(CROSSTALK)

MATTHEWS:  Tell me where the issue stands now. 

FOGEL:  Well, the judge turned down the temporary restraining order, which was the effort to keep him in the country while the case was pending. 

In the course of that, of course he did indicate his own views at this juncture was that the extension of his contract was lawful.  We disagree with that, but the government must respond to the papers we filed and the judge will issue a ruling on it.  Let‘s remember, David Qualls served four years in the Army.  He served four years in the Reserve.  He was enlisted under a program called the “Try One” program for prior veterans, where they‘re being told that try the program for one year.  If you like it, then you have a full enlistment.  If not, you leave. 

(CROSSTALK)

MATTHEWS:  But it‘s being interpreted as they try you for a year. 

FOGEL:  Well, that‘s apparently the case. 

MATTHEWS:  Yes.  They decide, if they like this cut of your jib, you‘re in for more years than you thought. 

FOGEL:  Well, one would hope that at least as a result of this process, people will learn that the contracts that are being written by the military with respect to these enlistments are not worth the paper that they‘re written on. 

MATTHEWS:  Let me ask Ken, who is the totally nonbiased expert on this program right now.

(LAUGHTER)

MATTHEWS:  And I mean this.

Advice now, sir, Colonel, to potential enlistees, without prejudicing either side.  What should a young enlistee who is approached by a recruiter believe is the case if called to the Guard or called to the regular Army or services? 

ALLARD:  Get it in writing and take it to a lawyer and make sure you fully understand what you‘re signing when you sign it.  I‘ve had the same reactions many times as unit commander that you have just heard here. 

In many cases, you find kids do not have a particularly good understanding of what they‘ve just signed, that it‘s true before they get in the service.  It‘s true when they‘re trying to leave.  So you simply have to understand what it is that you‘re being trained for and what your obligated term of service is likely to be. 

MATTHEWS:  OK, Jeffrey Fogel, thanks for coming on tonight.

Ken, as always.

ALLARD:  You bet.

Jeffrey, we‘ll keep up with the case.  It should be interesting to have a guy over there in harm‘s way also fighting a legal case back home. 

Anyway, tomorrow on HARDBALL, former President Jimmy Carter is going to be my guest right here.  And coming up next week, just in time for President Bush‘s economic summit, Donald Trump is going to join us.  He is one of the country‘s best known business leaders.  And he‘ll be my guest on Monday. 

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

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

END   

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media Inc. (f/k/a/ Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,