updated 6/16/2005 9:57:10 AM ET 2005-06-16T13:57:10

Guest: John Harris, Deborah Orin, Michael Duffy, William Schulz, Michael Smerconish, Gary Schroen, Tom Wilner, Lindsey Graham

CHRIS MATTHEWS, HOST:  Amnesty International calls Gitmo the gulag of our time.  Defenders say America is at war, there‘s no alternative site and the prisoners are treated humanely.  Tonight, should the United States shut down the prison camp at Guantanamo Bay? 

Let‘s play HARDBALL. 

Good evening.  I‘m Chris Matthews.

Top Pentagon officials were forced to defend the need for the Guantanamo detention facility before the Senate Judiciary Committee today. 

And, as HARDBALL‘s David Shuster reports, battle lines are being drawn over whether the treatment of detainees there and international opinion are reason enough to shut it down. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, NBC CORRESPONDENT (voice-over):  In the wake of a Pentagon report detailing mistreatment of detainees and abuse of the Koran, today, in a hearing on Capitol Hill...

SEN. PATRICK LEAHY (D), VERMONT:  Guantanamo Bay is an international embarrassment to our nation, to our ideals, and it remains a festering threat to our security. 

DAVID SHUSTER, NBC CORRESPONDENT:  Those who want Guantanamo Bay closed all say that, in the war on terror, the continued operation of the prison is now causing more harm than good. 

But the criticism has been building.  Three years ago, these images of the first detainees prompted complaints the U.S. was violating the Geneva Convention.  And this week‘s “TIME” magazine reports, interrogator use an ancient Chinese method of dripping water on detainees to try and break their will.  Others interrogators have repeatedly described tactics, including religious and sexual humiliation. 

ERIK SAAR, FORMER GITMO ARMY INTERPRETER:  And, in one instance, fake menstrual blood was wiped on a detainee‘s face. 

SHUSTER:  The Pentagon says these aggressive methods have been only used sparingly.  Officials point at that nobody has died at Guantanamo Bay and that the information gleaned from some prisoners has been helpful. 

DONALD RUMSFELD, SECRETARY OF DEFENSE:  The kind of people held at Guantanamo include terrorist trainers, bomb makers, extremist recruiters and financiers. 

SHUSTER:  Bush administration supporters add that 10 prisoners who were not considered a threat were released and then were captured or died fighting U.S. forces. 

SEN. BILL FRIST (R-TN), MAJORITY LEADER:  Let‘s not cut and run because of image problems.  Let‘s address the fundamental issues. 

SHUSTER:  The fundamental arguments, however, for and against the prison have been made more complex by politics and court rulings.  This spring, the U.S. Supreme Court ruled that, even though Guantanamo Bay is outside the United States, the dozens of detainees who have been held for up to three years without being charged must be given hearings in accordance with the Constitution. 

On the politics side:

IRENE KAHN, AMNESTY INTERNATIONAL:  Guantanamo has become the gulag of our times. 

SHUSTER:  That comment by Amnesty International, refuted even by Jimmy Carter, has given the Bush administration an opportunity to dismiss all criticism with comments like this. 

DICK CHENEY, VICE PRESIDENT OF THE UNITED STATES:  Those who are most urgently advocating that we shut down Guantanamo probably don‘t agree with our policies anyway. 

SHUSTER:  Guantanamo Bay defenders, though, have also provided ammunition. 

REP. DUNCAN HUNTER ®, CALIFORNIA:  So, the point is that the inmates in Guantanamo have never eaten better.  They‘ve never been treated better.  And they‘ve never been more comfortable in their lives. 

SHUSTER:  Congressman Duncan Hunter this week trying to show that detainees are well cared for ate an item they eat, lemon chicken. 

HUNTER:   Producing props of chicken dinners and such, seeming to argue this is more a Club Med than a prison.  Let‘s get real.

SHUSTER (on camera):  Reality, though, depends on who you talk to.  Administration officials say Guantanamo must be kept open because of the unusual nature of the war on terror.  Prison critics say that, to win the war, the U.S. must improve its image. 

The bottom-line question, though, is, should the U.S. keep Guantanamo open or shut the prison down and move the detainees somewhere else? 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Republican Senator Lindsey Graham of South Carolina is a member of both the Judiciary Committee and the Armed Services Committee of the United States Senate.  And he‘s opposed to shutting down that detention facility at Guantanamo Bay, Cuba. 

Senator Graham, you are out there fighting hard to defend this institution.  What is all the fighting about, from your perspective, holds right now?  Why are people wanting to shut it down? 

SEN. LINDSEY GRAHAM ®, SOUTH CAROLINA:  Well, I think people are concerned that it has created an image problem for us throughout the world.  There‘s some legitimacy there.  People are concerned that you‘ve had detainees for three years without any movement. 

I share those concerns.  But the bottom line is, you have got over 500 people.  Some of them are very, very dangerous.  You just can‘t let go.  So, I want to reform it, not close it. 

MATTHEWS:  Why is it a good place to hold dangerous detainees? 

GRAHAM:  Because it is not South Carolina.  It is not New York.  It is not any state.  Any senator who wants to close this place down, the question should be to them, would you take them in your state?  It is a place under military control.  It is an isolated place.  It is easy to defend.  And you—I think it is an ideal place. 

But it is not working to its maximum efficiency.  There are three goals I think we should achieve by having Guantanamo Bay, number one, a place to interrogate detainees who are enemy combatants or terrorists to get information in a humane way to protect us, two, a place to have trials, to hold them accountable for their terrorist activity, and, three, a place to show the world that the rule of law works even for terrorists. 

And those three goals, I think, are good goals for the war on terror, but we‘re falling short. 

MATTHEWS:  What about a person who is simply dangerous but didn‘t commit a crime yet?  How do we deal with them? 

GRAHAM:  Well, to be an enemy combatant, you have to have be found to have been part of a force, al Qaeda or some other terrorist network.  So, mere membership, in my opinion, makes you subject to being tried. 

Enemy combatants historically have been held for the duration.  The question becomes, when is this war over?  I can‘t tell you when it is over.  I know this.  You can‘t take people to Guantanamo Bay and keep them forever, nor should you let them go within 72 hours, like a common criminal. 

We need a procedure and process that will allow us to determine who an enemy combatant is, interrogate them to make us safer in a humane way, and set up trials for the worst offenders and repatriate those who—who don‘t meet the category of a—of a threat.  That, to me, would look good to the world.  It would make us safer. 

And the Congress, Chris—you‘re an old congressional staffer—the Congress needs to get more involved.  We need to write statutes, in my opinion, dealing with the concept of enemy combatant and just not leave it to the Pentagon. 

MATTHEWS:  But what do you do with the guy who is accused of being the 20th hijacker?  He was picked up in the field out there on the border with Afghanistan and Pakistan.  We know him to be the 20th hijacker.  He would have been the fifth member of that crew that the plane—where the plane crashed in Pennsylvania. 

GRAHAM:  Right. 

MATTHEWS:  And may not have crashed if he had been part of the crew, the hijacking crew.  It may have gone all the way to the Capitol, where you are right now, and blown up the place. 

GRAHAM:  Right. 

MATTHEWS:  So, he didn‘t get to do what he wanted to do.  We know that.  Is that—can we hold him in perpetuity, so he doesn‘t try it again? 

GRAHAM:  Number one, you interrogate him and you be aggressive. 

Physical and psychological stress is part of interrogation.  And that can be part of what goes on at Guantanamo, as long as it is humane and meets international norms.  But physical and psychology stress are acceptable techniques, as long as they don‘t get out of bounds.  So, we need to standardize...

(CROSSTALK)

MATTHEWS:  But why should we ever let that guy go?  Senator, why should we ever let Kahtani go? 

GRAHAM:  You should prosecute him.  What you should do is hold him accountable. 

The missing link down there is, if you have got a guy who is the 20th hijacker, that you believe was involved in planning the 9/11 events, that is intricately involved in the terrorist activity and terrorist network, they should be held accountable. 

Here‘s the message. If you join al Qaeda or some sympathetic group like al Qaeda and we catch you, if you‘re not killed, you‘re going to be held accountable for your crimes and your terrorist activity.  We should prosecute this person, hold them accountable under the rule of law to let the world know that, one, that we‘re a rule-of-law nation, and, two, future terrorists, that there‘s a downside for joining these groups. 

MATTHEWS:  Is there any reason, except for image, that we should shut down Guantanamo that you can think of? 

GRAHAM:  Absolutely not.  And it is the wrong image. 

We need a place to interrogate the 20th hijacker, the 21st hijacker. 

We need a place to prosecute people who are involved in heinous activity.  We need a place to hold them accountable.  To shut this down I think would set us back in the war on terror.  We‘ve received good information from interrogating these people, but not one person has been prosecuted yet. 

So, let‘s redo Guantanamo Bay.  Let‘s set procedures in place that will withstand international scrutiny.  Let‘s make sure that the—that the world knows, this is not a gulag, but it is a place where bad people go to be interrogated, to keep us safe as a nation and every answers for their crimes.  And if you can‘t prove the case after a reasonable period of time, you have to repatriate them.  That‘s what we need to do, in my opinion.  And we should do it soon.

MATTHEWS:  Thank you very much, United States Senator Lindsey Graham from South Carolina.  Thanks for joining us. 

GRAHAM:  Thank you. 

MATTHEWS:  Tom Wilner is an attorney representing 11 Kuwaitis being held in Guantanamo. 

Mr. Wilner, thanks for joining us. 

I know you represent people that are in Guantanamo.  But why do we have Guantanamo?  What is the issue here? 

TOM WILNER, ATTORNEY FOR GUANTANAMO BAY PRISONERS:  Well, the reason the government established Guantanamo was really to take people outside the law.  They said that Guantanamo was outside the United States, so if they took foreigners there, they didn‘t need to abide by the law.  Simple as that.

MATTHEWS:  And so, let me ask you.  You‘ve got—you‘ve got clients. 

Is there reasons besides criminal justice to hold people?  In other words, can you hold a person simply because you believe, for example, he is the 20th hijacker?  You believe, if you let him go, the first thing he‘s going to do is tape some bombs to himself and blow up an airplane?  Is that a reason for holding somebody? 

WILNER:  Absolutely.  I think that everybody should realize that we have got to be able to hold anyone who is really dangerous to our country. 

The real question at Guantanamo, though, is, you have got to have some system to distinguish those who are dangerous from those who are not.  I mean, you‘ve got to have—the precondition to any incarceration has got to be some independent examination of the facts to see if there‘s a justification for it.  And that has not happened at Guantanamo. 

MATTHEWS:  Your clients, were they just swept up in this?  They weren‘t guilty?

WILNER:  I think my clients—we know that my clients were swept up and they were bounties.  They were sold for bounties by Pakistani tribespeople.  And they‘ve never had a fair hearing to say, is there reason that they should be there? 

(CROSSTALK)

MATTHEWS:  Where were they picked up? 

WILNER:  Mostly in Pakistan. 

MATTHEWS:  What were they doing? 

WILNER:  A lot of them were there for charitable purposes.  Some were there on trips. 

I mean, I have got 12 clients, 11 who are still there.  Three of them are teachers.  Two of them were with a Kuwait charitable organization.  Another guy was a former engineer with Kuwaiti aircraft who was looking for a charitable, establishing a charitable foundation there. 

MATTHEWS:  Well, Hamas could be called a charitable foundation, and Hezbollah.

WILNER:  They could.  Sure.  Sure they could. 

MATTHEWS:  Well, they have multi purposes, these organizations.  And one of them is terrorism, right?

WILNER:  No, listen, and civilians can be bad guys.  And people can do things bad.  But you‘ve got to have some way of looking at them...

(CROSSTALK)

MATTHEWS:  Were your clients involved in terrorism? 

WILNER:  I don‘t think so, no. 

As a matter of fact, the government has never said that they were.  You know, of all the people at Guantanamo—this is critical—only 14 have been named as people the government has reason to believe were connected with terrorism.  None of the others do they say they have reason to believe were connected with terrorism.  Only five have been charged.

MATTHEWS:  But I have read, of the 500-plus people down there, there‘s 500-plus, almost all of them who are—are defined as enemy combatants. 

WILNER:  Yes, but enemy combatant is a slippery term. 

I mean, they don‘t say—when they first took them down there, they said these guys are the worst of the worst and they‘re terrorists.  They don‘t even say that anymore.  They said that they might have been fighting or helping or supporting the Taliban, even if they weren‘t terrorists.  And that‘s very important for us to understand. 

MATTHEWS:  What—let me just break it into the simple fact.  And you would—put your clients in this perspective. 

It seems to me there‘s two reasons to keep—maybe three reasons to keep somebody detained for any reasonable amount of time, besides overnight.  One is that you think they‘re guilty and you‘re going to try them at some point.  Two, you think they‘re dangerous. 

WILNER:  Yes. 

MATTHEWS:  Three—and this could overlap the others—they got info.  Right? 

WILNER:  Well, I—I would disagree. 

MATTHEWS:  Do your clients have any of these things?  Are they either guilty, are they dangerous or do they have info the government wants? 

WILNER:  I think none of the three. 

I would argue that the third one, you shouldn‘t hold somebody just because he his info.  For instance, if you had—if you had done something wrong, they can‘t hold you forever.

MATTHEWS:  Well, you disagree with our colleague Alan Dershowitz on that.  If somebody knows a bomb is about to go off in three months or three hour, you hold them. 

WILNER:  Well, could you hold somebody‘s brother because a guy—because a brother was a bad guy, could you held the rest of his family?  There are other ways to get information, besides...

(CROSSTALK)

MATTHEWS:  Depends how big the bomb is, maybe. 

WILNER:  Well, I mean, there are times that we could really stretch the limit on people. 

But, you know, nobody is claiming that these people at Guantanamo fall into that—that latter category.  Nobody says, after three years, that they have any ticking bomb information.  The government doesn‘t even say that most of these people are terrorists.  It uses the term enemy combatant.  They‘re holding a guy who they say was—was taken into service as a cook for the Taliban against his will and they‘re calling him an enemy combatant. 

MATTHEWS:  Well, you‘ve got to come up with a motive.  Why do you think they‘re being held, then? 

WILNER:  I—you know, I think, in a way, you really need to ask the government that.  I think the government has made some big mistakes here and I don‘t think they‘re willing to admit it, although the...

(CROSSTALK)

MATTHEWS:  I‘ll give you one.  You‘re the expert.  You‘re the attorney.  But it seems to me, one reasonable supposition is, once you‘ve held a guy for a year or two, he is so ticked off at his captors, the—us, that, when you let him go, he is going to join the other side. 

WILNER:  Well, there might be that danger. 

And I can tell you, my guys who are Kuwaitis, most of them have told me that they were so shocked by this, that they loved the United States.  The United States freed them from Saddam Hussein.  When they were turned over to the United States, they were overjoyed.  And then, immediately, they were treated this way. 

MATTHEWS:  Well, can they make that—when they make that plea to their captors, when they do get interviews, obviously, and they say, look, we were swept up in this damn thing, we were—we—we were not doing anything wrong over there in Pakistan.  What do they—what do they get told?

WILNER:  They get told something very much like—you know, I hate to use the word gulag, because it is an inappropriate term for this.

But if you read Anne Applebaum‘s book about the gulag, people who were swept up with that would say to their captors, I‘m an innocent guy.  And the captors looked back at them and say, you could not be.  Why else would you be here?  We don‘t take innocent people.  It is that sort of...

MATTHEWS:  Cyclical argument. 

WILNER:  Cyclical argument, sort of Kafkaesque argument.

MATTHEWS:  Have any of the people who—have been released from Gitmo once they‘ve been sent down there?  Or is that a point—a roach motel down there? 

WILNER:  No, they‘ve had—they‘ve had 200 people released.  And the government says, well, some of those went back to fight. 

You know, and my guys tell me, he said that there‘s no rhyme or reason to this.  They‘re releasing guys from here who are open, you know, supporters of Osama bin Laden and we sit here we don‘t even get a fair hearing. 

MATTHEWS:  Yes. 

Thank you very much, Tom Wilner.

WILNER:  Thank you. 

MATTHEWS:  Thanks for coming on, on short notice.

Stay with us. 

When we return, former CIA officer Gary Schroen says Gitmo should be closed, plus, Amnesty International‘s William Schulz, and radio talk show host Michael Smerconish, all with different views on this hot topic.  Should Gitmo go or Gitmo stay?

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, the CIA man sent in to get bin Laden.  I‘ll ask him why he says Gitmo should be closed.  The debate continues when HARDBALL returns.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

And the debate over Guantanamo Bay continues.  Gary Schroen served as the CIA station chief in Pakistan and was tasked with killing bin Laden after 9/11.  He chronicled that experience in his new book, “First In.”  Michael Smerconish is a radio talk show host and the author of “Flying Blind: How Political Correctness Continues to Compromise Airline Safety Post 9/11.”  And William Schulz is executive director of Amnesty International, which has been highly critical of the treatment of detainees at Guantanamo Bay. 

Amnesty International‘s secretary-general, Irene Kahn, has even gone so far as to call the facility the Guantanamo the gulag of our times. 

So, let‘s start right now with Michael Smerconish. 

Should Guantanamo be kept as a detention camp for terrorists? 

MICHAEL SMERCONISH, RADIO TALK SHOW HOST:  Absolutely. 

And, you know, “TIME” magazine this week, Chris, finally gives us a name that we can talk about, instead of debating this in the abstract.  Mohammed al Kahtani would have cut someone‘s throat with a box cutter on September 11 and perhaps would have allowed Flight 93 to crash into the Capitol or the White House, but for an astute INS agent who kept him out of the country on August 4 of 2001. 

This is the kind of a guy that we‘re talking about.  And I for one am sick and tired of all the kvetching over his rights and his liberties.  People have already forgotten what occurred and it has not even been four years. 

MATTHEWS:  Let me go to Bill Schulz. 

Should Guantanamo Bay be shut down? 

WILLIAM SCHULZ, EXECUTIVE DIRECTOR, AMNESTY INTERNATIONAL USA:  Yes, it should be.  It has become the best recruiting tool for al Qaeda that the United States could possibly has provided.  It‘s also become a symbol of U.S. recklessness and hypocrisy in promoting what we claim is a war in defense of the rule of law. 

MATTHEWS:  What do we do with the detainees who are down there now? 

SCHULZ:  We bring them—we do one of two things.  We either charge them with a crime, bring them to the U.S. mainland and put them on trial, or we have to release them.  Now, the “TIME” magazine...

MATTHEWS:  We have to release people, even if they‘re dangerous? 

(CROSSTALK)

SCHULZ:  No.  No.  Absolutely not.  If we—we then have to charge them with a crime. 

MATTHEWS:  Suppose they haven‘t committed a crime.  Suppose they‘re simply dangerous. 

SCHULZ:  That‘s a serious problem, then.  We can‘t hold them. 

MATTHEWS:  Why not? 

SCHULZ:  What—on what charge?  On what charge? 

MATTHEWS:  Well, this guy, al Kahtani, who may have been the 20th hijacker. 

(CROSSTALK)

SCHULZ:  And that‘s right.  And if that‘s the case, he should be charged, as Moussaoui is being charged as this 20th hijacker. 

(CROSSTALK)

MATTHEWS:  What do we do with people who are members of al Qaeda and openly so? 

SCHULZ:  We charge them with crimes. 

MATTHEWS:  And that is a crime, to be a member of al Qaeda? 

SCHULZ:  It may well be a conspiracy, absolutely, if there‘s evidence to show that they have been involved with violence or potential violence or planning of violence against the United States or against innocent civilians.

MATTHEWS:  By that argument, the people coming in this country on 9/11, if we had picked them up 24 hours before 9/11, we couldn‘t have kept them, because you say they wouldn‘t be able to be charged with a crime yet. 

SCHULZ:  I didn‘t say that.  I said, they might very well be able to have charged them with a crime. 

MATTHEWS:  But if they haven‘t committed the crime of 9/11 yet, how did we—how could we have kept them? 

SCHULZ:  Well, look, this is just like in domestic situations where someone is suspected that they may commit a crime.  But we don‘t then throw them in jail indefinitely. 

Look, the “TIME” magazine article was very interesting.  It did three things.  It documented a pattern of abuse, so no one can question that any longer.  It showed that some of the most effective interrogation of al Kahtani was nonviolent interrogation. 

And, finally, it demonstrated that once al Kahtani had been made a psychological misfit, psychotic, psychological trauma, hearing voices, then his evidence was used to convict or to keep others at Guantanamo in prison.  In other words, we were using a psychotic and evidence from a psychotic against other people.  That‘s the problem with not bringing people to trial.  There may well be dozens more who are not like al Kahtani and who ought not to be at Gitmo. 

MATTHEWS:  Gary Schroen, we come to a two-part question.  One, should we keep Gitmo? 

GARY SCHROEN, AUTHOR, “FIRST IN”:  No.  I think, symbolically, it needs to go. 

MATTHEWS:  OK.  Second part.  Should we keep people detained who we can‘t prove did something wrong simply because we believe they‘re part of a terrorist organization and would—quote—as Michael put it—“slit our throat” if given a chance? 

SCHROEN:  I definitely think we should. 

I think Guantanamo should be closed for several reasons.  One, it is a symbolic mistake—symbolic of the mistakes that the U.S. government has made in its dealings with its prisoners and its enemy combatants.  I think we need a fresh start someplace, perhaps like Guam, the military—U.S.  military facilities there. 

We need, though, to relook at how we interrogate prisoners and how we treat them.  And I agree that the “TIME” magazine article this week shows that a pattern of abuse, physical and psychological, which doesn‘t really produce the—the kinds of information that we want.  I think that we need a whole revamping of this thing and a fresh start.  Someplace other than Guantanamo would be well in line. 

MATTHEWS:  You‘re shaking your head in disgust, Michael. 

SMERCONISH:  I‘m shaking my head because I‘ve read the “TIME” magazine piece.  Where is the abuse?  We shaved the guy‘s beard.  We played Christina Aguilera music and we pinned 9/11 victim photos to his lapel.  That‘s abuse? 

Abuse to me is cutting off Nick Berg‘s head.  Abuse to me is cutting somebody‘s throat with a box cutter.  I mean, what‘s wrong with sending a message to radical Islam that says, we are going to play hardball with you if you do bad things to the United States?

MATTHEWS:  Well, one—one problem with it, Michael, though I love your spirit, is that you‘re creating attitude on the other side that—that escalates.  They see us making fools of their people.  They cut off a few more heads. 

SMERCONISH:  You are presupposing that, if you fed them a nice warm piece of quiche and gave them a soft blanket...

MATTHEWS:  No.

(CROSSTALK)

SMERCONISH:  ... that that wouldn‘t be the case.  That‘s already the case, Chris. 

MATTHEWS:  Bill, you take it up.

SMERCONISH:  Chris, that‘s already the—they hate us, Chris. 

SCHULZ:  Well, first of all...

SMERCONISH:  I‘m saying they hate us. 

SCHULZ:  First of all, the description of the “TIME” magazine article leaves out the fact that the man was threatened with suffocation.  He was threatened with dogs.  He was kept in prolonged...

MATTHEWS:  This is Mohammed al Kahtani.

SCHULZ:  Al Kahtani

MATTHEWS:  The 20th hijacker... 

(CROSSTALK)

SCHULZ:  Kept in prolonged isolation.  And he went psychotic as a result of all this.

Now, even if he does have good information to give, how is it going to be good when he‘s gone psychotic? 

MATTHEWS:  What would you have done with him? 

SCHULZ:  Look, the best interrogators...

MATTHEWS:  What would you have done with him? 

SCHULZ:  I would have interrogated him in the appropriate way, according to the Army field manual, according to the FBI manual of interrogation. 

The best interrogators will tell that you, through the use of deceit and psychological manipulation, making friends with the person, threatening them without bodily threats, but other kinds of threats. 

MATTHEWS:  You can do that to a hard case?  You can warm them up with charm? 

(CROSSTALK)

SCHULZ:  I think if you bring interrogators, reputable interrogators on to this show, they will tell you that that‘s exactly true.  And, in fact, the “TIME” magazine article shows that major information that al Kahtani did give came as a result of that kind of interrogation. 

MATTHEWS:  Gary, do you subscribe to this, that a warmer approach would be—I don‘t mean to be sarcastic.

SCHULZ:  It‘s not a warmer approach, Chris.

MATTHEWS:  But a less—a less brutal approach to interrogation would be more effective? 

SCHROEN:  Absolutely. 

During World War II, the—the U.S. Marine Corps was eminently successful in extracting information from Japanese prisoners that were captured on the various islands they were occupying. 

This was well-documented.  An article in “The Atlantic” magazine this past month, it shows if, you treat these people—and you‘re talking Japanese soldiers in World War II, as fanatical and dedicated as any of the al Qaeda members that we‘re coming up against and who for whom being captured was the ultimate sin, the ultimate shame brought on them. 

Even in those conditions, when they were treated in a humane manner, not a kind manner, not an—not made the prison into a country club, but were treated as individuals and humans and allowed to keep their—their human dignity, we got the information. 

And I guess the question is, if—if what we‘re holding these prisoners for is punishment, then this harsh physical abuse is what we should be doing.  But if we‘re really out to get information and really gather information that is going to allow to us close down their friends and colleagues, then we need to rethink our approach. 

MATTHEWS:  We‘ll come back in a moment with more of this dispute.  And it is quite a dispute.  And I think it‘s a real one.  This is reflective of the very debate going on right now.

What do we do with these terrorists when we pick them up?  How do we make sure they‘re terrorists?  How do we punish them?  How do we get information out of them and let them go if it‘s not a problem—if they‘re not a problem?

HARDBALL, only on MSNBC, comes back in a moment with the same debate.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with a hot debate whether to close Guantanamo Bay with former CIA officer Gary Schroen, radio talk show host Michael Smerconish and Amnesty International‘s William Schulz.

Let me go to Michael Smerconish to start this off.  We only have two minutes left. 

This charge by Amnesty International‘s top person that it is a gulag down there, your reaction? 

SMERCONISH:  I think it is despicable that they would cast such aspersions on the United States military. 

We‘re talking about some of the most highest-profile targets of al Qaeda now in custody.  I‘m not an expert on interrogation, but I have got to believe that the brightest and the best that we have are doing the interrogation.  And if they think they need to use these means, then it is OK with me.  We need to do it.

MATTHEWS:  What about keeping people forever?  It seems to me, a gulag is a place, as in the old horrible Soviet Union, where you went and you really didn‘t come back in one piece, if you ever came back. 

Would you be happy with that kind of treatment of suspected terrorists?  They just go like a roach motel and they never come out?

SMERCONISH:  The country is at war, Chris.  I mean, we‘re not talking about a domestic situation.  We‘re not talking about a carjacker in New York City. 

(CROSSTALK)

MATTHEWS:  I know.  I‘m asking you for a verdict in general.  Are you happy with being an American if you know that Americans are keeping people, suspects, really, who haven‘t been convicted of a crime forever?

SMERCONISH:  Absolutely.  In the war on terror, yes. 

MATTHEWS:  OK.  Let‘s go to—let‘s go to Gary Schroen. 

Would that work, Gary, if we just pick people up, suspected them, didn‘t like their looks, figured they were part of a team, keeping the wrong company, kept them? 

SCHROEN:  No.  I don‘t think it would work. 

Chris, I spent 35 years of my life learning how and trying to collect intelligence from foreign sources.  And I just don‘t think what we‘re doing is working.  I think it is backfiring for us overseas.  I‘m not saying to mollycoddle these people, but we really need to rethink what we‘re doing and how we‘re treating these prisoners to get the most maximum effect out...

(CROSSTALK)

MATTHEWS:  I‘m sorry.  We only have a couple seconds, Gary.

(CROSSTALK)

SCHROEN:  ... holding them.

MATTHEWS:  Sorry, Gary.

Bill, are you happy with that comparison between this and the old Soviet gulag, Guantanamo? 

SCHULZ:  Look, there are differences.  There are similarities.  And I don‘t care what we call it.  The fact...

MATTHEWS:  Are you happy with that term from your organization? 

SCHULZ:  There are certainly similarities, Chris, with the Soviet gulags.  There are also differences, as I have made clear.

(CROSSTALK)

MATTHEWS:  But in the main, is it a gulag?  Is it a gulag or isn‘t it?

SCHULZ:  It is an archipelago of secret prisons in which prisoners are being detained, as you say, held forever.  And the point is that America‘s best weapon against terrorism is its own values.  That‘s what we‘re admired about.  We ought to stand for the rule of law. 

MATTHEWS:  It‘s the central debate in our lives. 

Thank you, gentlemen, for making it so vital. 

(CROSSTALK)

MATTHEWS:  Gary Schroen, thank you, sir.

Michael Smerconish, thank you, Philadelphia guy.

And William Schulz, thank you, sir.

When we come back, more on what we should do about Guantanamo with journalists this time, Michael Duffy, Deborah Orin and John Harris of “The Post.”  

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

For more on the debate over Guantanamo Bay, we turn to Michael Duffy, the Washington bureau chief for “TIME” magazine and co-author of this week‘s cover story on Gitmo.  There you see it.  Deborah Orin, Washington bureau chief for “The New York Post,” and John Harris, a political reporter for “The Washington Post” and author of the hot new book on Bill Clinton, the most fair-minded book, people say, ever written on this guy, “The Survivor.” 

John Harris, first to you. 

Do you think Gitmo will be closed after all the Sturm und Drang?  Or is it going to stay there?

JOHN HARRIS, AUTHOR, “THE SURVIVOR”:  No, I don‘t think it was.  I think President Clinton got off message—I mean, excuse me—President Bush got off message when he was sort of leaving this as an open question.  I think it is clear that they need the facility and the closing.  It is not an option. 

(CROSSTALK)

MATTHEWS:  They need it because it is offshore—they need it because it is offshore and because you can do things there you can‘t do here, or because it is convenient or because it is I‘m sticking to my fight or what?  Why do they need it?

HARRIS:  No, no, no.  I think they need it for very practical reasons, not just a matter of sticking to—sticking to a fight. 

It is offshore.  It is secure.  It is out of the media spotlight.  It is not in a swing state.  It is not—it is tailor-made for what they want it for, I think.  And they don‘t have a good alternative. 

MATTHEWS:  Deborah Orin, will they stay and fight? 

DEBORAH ORIN, WASHINGTON BUREAU CHIEF, “THE NEW YORK POST”:  Well, you mean, will they stay in Gitmo?  Obviously, they will. 

I mean, name me the U.S. senator who would like this facility in their home state.

MATTHEWS:  That‘s the question.

ORIN:  You know, it just not happening. 

MATTHEWS:  This reminds me of nuclear waste disposal.  I mean, no—everybody says, it has got to be somewhere, I guess, because no one is willing to say—are they, Mike Duffy—we don‘t need to detain, we don‘t need to interrogate, we don‘t need to punish? 

MICHAEL DUFFY, WASHINGTON BUREAU CHIEF, “TIME”:  No.  Or, at some point, we need to actually have legal proceedings to figure out what to do with them, which they don‘t have a plan for either. 

MATTHEWS:  At some point.

DUFFY:  But we don‘t—we don‘t see that...

(CROSSTALK)

MATTHEWS:  We don‘t expect this cleaning-up process of getting rid of 500-plus potential terrorists until after this thing is settled in Iraq, do we? 

(CROSSTALK)

DUFFY:  There‘s no timetable for that.  And John is right.  They are not going to close it because they don‘t have a good alternative, for all the reasons you mentioned. 

MATTHEWS:  Let me ask you the big question.  Is the battle over this, John, over—let me to go four layers.  Is it over reputation?  This has like become the best deal, you know, the bad place to put people.  Is it over the issue of interrogation?  Should we be interrogating people who are not guilty?  We just want to get stuff out of them and keep them off the streets? 

Is it about the war itself?  What is the fight about, really, about Gitmo? 

HARRIS:  Oh, I think it is all those things.  And, really, it is about what almost every phase in this has been.  It‘s a very ideological debate between people on the left, I think, and some degree on the center, who really think the United States should be acting as a partner in this community of nations, sort of the classic liberal idea, vs. people on the right say do not be naive.  We are in a war.  It is not a time for legal niceties or for standing on ceremony or procedure.  Get real.

And that is what it is about, I think.

DUFFY:  Well, you know, we had this—the story we have this week is just about what is going on in Gitmo, how they‘re interrogating them. 

Most of my e-mails running are from people who are calling me and saying, so what?  Why aren‘t we pulling their fingernails out?  You‘re talking about stuff that is relatively modest and within the rules and you seemed outraged by this.  We‘re not outraged.  We‘re just reporting it.

But most of the e-mail is essentially from conservatives who say, so what?  Let‘s do more.  Why don‘t we do—who cares what they‘re doing?  Let‘s just do more of it and get as much intelligence as we can out of these guys as quickly as possible. 

MATTHEWS:  That presupposes a couple things, Deborah.  That presupposes—and I‘m all—I can understand that sentiment. 

DUFFY:  Sure.

MATTHEWS:  It is a very angry sentiment.  It‘s about 9/11. 

DUFFY:  Sure.

MATTHEWS:  That they‘re really the right people. 

Do we know, do you know, that the 550 people down there really are suspected for terrorism? 

(CROSSTALK)

DUFFY:  Well, some of them.  The guy we wrote about this week is one of the 20th hijacker -- 20 hijackers. 

(CROSSTALK)

MATTHEWS:  Al Kahtani, Mohammed al Kahtani.

DUFFY:  Yes.  it‘s one of the reasons they went after him so hard. 

And they raised the rules...

(CROSSTALK)

MATTHEWS:  Is he representative of that crowd down there? 

DUFFY:  Well, that‘s hard to say, because we don‘t know very much about who the other 549 are. 

MATTHEWS:  Does—Deborah, does anybody want to beat the hell out of somebody who is not guilty, who isn‘t a terrorist, just an Arab that got picked up or a Kurd?  What would be the purpose of that? 

(CROSSTALK)

ORIN:  I go back to the fact that we need to remember we‘re at war. 

And it makes it—you know, for some of the people who are on the left on this issue, it gets very easy to say, oh, we need to treat them with proper respect and so on.  This is a very complicated question, because, on the one hand, you don‘t want to behave as badly as they do.  On the other hand, you know, I think the reaction in much of the al Qaeda world to this story will be, what a bunch of wusses.  Boy, if that is all they do to you, we don‘t even have to be afraid of being captured.

MATTHEWS:  My big concern is, the longer you keep them, the angrier they get.  Eventually, you are going to send them home.  Maybe the smarter thing is to execute everyone down there, because if you‘re going to send them back to the Arab world or the Islamic world angry as hell at us, they‘re going to be doing dirty stuff against us, right? 

DUFFY:  Well, that‘s another reason why I think they need Gitmo.  They need somebody to put these—place to put maybe these people for a very long time, not three or four years, but longer than that.  Even if you have tribunals...

(CROSSTALK)

MATTHEWS:  Is that the thinking down there?  It is a gulag?

DUFFY:  Well, imagine.  Even if you have tribunals and you actually go through the process of having...

(CROSSTALK)   

ORIN:  Wait.

(CROSSTALK)

MATTHEWS:  No, is it a gulag if it‘s—if it is a place you send people that don‘t come back, what would you call it? 

ORIN:  You know, we don‘t have...

MATTHEWS:  What would you call that?

ORIN:  We don‘t have millions of people dying there.  Let‘s not call it a gulag. 

(CROSSTALK)

MATTHEWS:  We‘re talking about making them stay there until they do die, right?

DUFFY:  One of the things we also learned is that these guys are really good at resisting interrogation.  They‘re really good at it.  They‘ve been trained.  They know how to throw back every trick, every psychological trick. 

(CROSSTALK)

MATTHEWS:  If you were getting lemon chicken every night, you would...

(CROSSTALK)

MATTHEWS:  You would resist for a while.

(LAUGHTER)

MATTHEWS:  Anyway, coming up, President Bush goes on the offensive in a fund-raising speech last night, getting—we‘re getting a lot of noise about how good he was last night.  He is going after the Democrats against the obstructionism, he calls it, of the Democratic Party. 

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with John Harris of “The Washington Post,” Deborah Orin of “The New York Post,” and Michael Duffy.  He‘s bureau chief of “TIME” magazine. 

President Bush was out there on the stump the other night giving a very tough speech, criticizing the Democrats as the party of no. 

Let‘s listen up.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  We hear no to making tax relief permanent.  We hear no to Social Security reform.  We hear no to confirming federal judges.  We hear no to a highly qualified U.N.  ambassador.  We hear no to medical liability reform.  On issue after issue, they stand for nothing except obstruction.  And this is not leadership. 

(END VIDEO CLIP)

MATTHEWS:  Well, that‘s calling it, isn‘t it?  The president is dropping in the polls.  He is saying, all right, compare me to the other side, which is the no party. 

ORIN:  Yes.  That‘s exactly what he was doing.  He‘s saying, well, maybe it is time to start running against these guys, go back into campaign mode.  And that‘s what he did last night. 

MATTHEWS:  Is it a popular no the Democrats are voicing on all these issues? 

DUFFY:  Yes.  But that doesn‘t mean it is good politics for Bush to take.... 

(CROSSTALK)

MATTHEWS:  No.  Is it popular what they‘re saying no—in other words, are they right to say no, politically, to Social Security, to the war in Iraq, to John Bolton, etcetera, etcetera? 

DUFFY:  Oh, I don‘t think they‘re quite sure about saying no to the war in Iraq.  I think they‘re having huge internal arguments about just how to turn that...

(CROSSTALK)

MATTHEWS:  They can‘t call it a blunder yet.

DUFFY:  They can‘t—they aren‘t sure.  Every day, you get calls from Democrats saying, how high do we turn it?  Where do we stop?  Where do we start?

(CROSSTALK)

MATTHEWS:  I voted for the 87 before I voted against it. 

(CROSSTALK)

MATTHEWS:  That‘s why they‘re so...

(CROSSTALK)

DUFFY:  They‘re in crisis about what to say about Iraq. 

On Social Security, it is a little easier because the polls are so clear.  But Bush is really smart to say, hey, I can‘t make—I can‘t make traction because they‘re saying no.  That is a good explanation.  It‘s a good offense.  It‘s a good defense.

MATTHEWS:  John...

(CROSSTALK)

MATTHEWS:  John Harris, is attacking the Democrats as the Dr. No party smart politics for the president?  Is this going to get the monkey off his back, because it is on his back right now in the polls?

HARRIS:  Well, look, I think he is laying the groundwork for what must seem increasingly obvious, that it is very, very hard to envision Social Security passing.  It is going to get harder, probably, in a couple weeks. 

(CROSSTALK)

MATTHEWS:  Why does he keep pounding an issue, which is everybody—by everyone‘s estimate—and I‘m just reading the papers here in Washington, looking at the process on the Hill—it‘s not coming off the Hill.  It won‘t get to conference.  Nobody wants to put their fingerprints on it, do they?

HARRIS:  That‘s right. 

But, I mean, what he‘s—what he‘s finding, he‘s taking advantage of the one scrap of leverage he has, which is that the public does agree that there‘s a problem.  I mean, the reason it is good strategy, what the Democrats are doing, though, is that his prescription is not popular. 

I hate to be Clinton oriented about everything, but do I tend to be that way, as somebody who covered those years.  And I remember Bill Clinton making a speech where he gave—also to a fund-raiser, and he said, all the Republicans will do is no, no, no, no.  He almost lost it on a public stage once, nine no‘s right in a row. 

(LAUGHTER)

HARRIS:  But the thing is, when you mess around with big entitlement programs, the political potential damage is huge.  And he‘s—Bush has got to do everything he can to make sure that this isn‘t the equivalent of health care in ‘94.  I think it probably isn‘t, but that is the—the worst-case scenario. 

MATTHEWS:  I‘ll tell you, he has made it awful easy for Democrats running for Congress next year.

(CROSSTALK)

MATTHEWS:  Because all they got to do is run on the Social Security. 

I‘m here to defend it.  The president and his party are out to get it.  

It‘s an easy one.

DUFFY:  Yes. 

I also think he was trying to put himself in a position where he can say, I really tried to do this.  So, now let‘s reformulate the issue.  Maybe later on, as they get closer to that election, let‘s make it bigger. 

Let‘s try for more stuff. 

So, I—he is—he is—he is both trying to I think get done what he can, but also lay the groundwork in case he fails, laying a contingent to do something different.

MATTHEWS:  The president the election won by one state, but he also won by about three or four million in the popular vote.  Harry Truman back in ‘48 won that big upset, but then it was all downhill after that.  Is this president on a downhill trend politically for the next—rest of his term? 

(CROSSTALK)

ORIN:  I don‘t think we know that yet. 

I think he is certainly having a bad few months.  And they believe, I think correctly, that he has got about another year before he starts turning into a lame duck.  And he has got to start turning things around.  He has tried sort of not rising to the bait and not getting into a nasty debate with Democrats.  It is not working.  So now they‘re trying a different strategy.  Treat Democrats as though they were John Kerry. 

Coming up, Condoleezza Rice commented on HARDBALL last night on the significance of that Senate apology on lynching.  We‘ll get reaction form our panel.

And follow the biggest stories on—well, you can follow the biggest HARDBALL stories on Hardblogger, our political blog Web site.  Just go to HARDBALL.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back.

Last night on HARDBALL, I asked the secretary of state, Condoleezza Rice, for her reaction to the United States Senate‘s passing of a formal apology the other night for past lynchings in the Jim Crow era. 

(BEGIN VIDEO CLIP)

CONDOLEEZZA RICE, SECRETARY OF STATE:  Well, I‘m delighted that they‘re going to do it.  And I know that people like Senator Allen have been involved in it, a number of Southern senators.  I—it‘s a really good thing. 

(CROSSTALK)

MATTHEWS:  A little late.

RICE:  Well, better late than never on something like this.

I remember as a kid the stories about lynchings.  Everybody‘s family had at least one story in that regard.  You know, my grandfather, who ran away from home at 13 because he‘d gotten into an altercation with a white man over something that happened with his sister, and he was pretty sure that, if he hung around, that‘s what was going to happen to him.

MATTHEWS:  So, it was real.

RICE:  Yes, it was absolutely real. 

(END VIDEO CLIP)

MATTHEWS:  John Harris, that is an interesting person right there.

HARRIS:  Sure.

MATTHEWS:  You know, her past is so American, in the sense of growing up in the Deep South, being old enough, although she‘s not old, to have known personal experiences of lynchings and knowing that it‘s a fear that people lived with.  And yet here she is, a world expert, you know, a pianist of great repute, and the president‘s and the country‘s number one foreign policy diplomat.  And she has all that in her head and her heart. 

HARRIS:  Yes. 

I mean, I‘m certainly in no position to contradict Secretary Rice or really any African-American who feels this is important.  I have to say, my reaction to it is a little bit of a cold comfort for somebody who was actually lynched decades ago.  I tend to be a little bit jaundiced, I guess, about some of these purely symbolic gestures that are really about empathetic point-making. 

And, indeed, the Republicans used to roll their eyes at this kind of thing all through the ‘90s when there were these repeated sort of symbolic apologies during the ‘90s. 

(CROSSTALK)

HARRIS:  But, you know, no harm done, it seems like.

MATTHEWS:  Your man—your topic, I should say, Bill Clinton...

(CROSSTALK)

MATTHEWS:  ... loved to go around.  I once heard Henry Kissinger mocking Clinton for everywhere he went in the world, he apologized.  He went to West Africa.

HARRIS:  Yes.  That‘s exactly what I was thinking. 

(CROSSTALK)

MATTHEWS:  And apologizes for slavery.  He goes somewhere and apologizes for the Cold War.  He apologizes for everything. 

But it is interesting, I think, Mike and Deborah, that Republican Senator George Allen was one of the people leading this thing. 

ORIN:  Well, the other thing that‘s really...

MATTHEWS:  From Virginia.

ORIN:  The other thing that‘s really interesting about this is, the reason that the Senate didn‘t act on anti-lynching legislation was the filibuster. 

And that‘s the reason that the Senate didn‘t act on civil rights legislation. 

(CROSSTALK)

MATTHEWS:  And your point being...

(CROSSTALK)

MATTHEWS:  Bring this up to date.  I think I know where you‘re heading.

ORIN:  Well, my point being that, in a lot of the news conference of this, most notably in the “New York Times,” there was very little mention of the fact that, had it not been for the filibuster, which the liberal side of the universe is now seeing as the great sacred thing to preserve whatever...

MATTHEWS:  Right. 

ORIN:  ... action might have been taken against lynching long before it was.  And instead of having what John just described as cold comfort, we might have saved some lives. 

MATTHEWS:  Is Bolton getting lynched?

ORIN:  Well, I mean, let‘s not demean the word by saying that. 

MATTHEWS:  No.  But, I mean, he is politically, isn‘t he? 

ORIN:  Is Bolton going to make it? 

MATTHEWS:  Yes. 

ORIN:  I don‘t think we know yet. 

MATTHEWS:  Mike Duffy.

(CROSSTALK)

DUFFY:  I was going to say one thing about Rice, one more thing.

She doesn‘t talk about race explicitly very much.  But she has begun, when she go overseas, to talk about the speed with which African-Americans, the slow speed with which African-Americans got their rights and their freedom and their Voting Rights Act rights at home when she goes to places like the Middle East and she goes to Iraq. 

(CROSSTALK)

DUFFY:  And even in Asia.  She—she invokes that history more and more. 

MATTHEWS:  So that we won‘t be too la-dee-da, too superior when we talk about democracy and its roots. 

(CROSSTALK)

MATTHEWS:  You know, the other night, she turned around and there was a—over at the State Department, she pointed to a portrait, a very impressive portrait of Thomas Jefferson.  You‘ve seen it when you walk by that hallway over there.

(CROSSTALK)

MATTHEWS:  And she said, you know, he had slaves.  And he was the best we had—John. 

(CROSSTALK)

HARRIS:  Yes, Chris, I don‘t—I try not, as a reporter, to be too cynical about this.

But I know Senator Allen.  I‘ve covered him for a dozen years.  I know he is not a prejudiced man.  I honestly believe that.  But it is true that he has taken heat in Virginia for being insensitive to some of these issues of racial symbolism.  He used to display a Confederate flag in his home and so forth.  And that offended people.  And so, he apologized for it. 

But, repeatedly he‘s had these issues where he has maybe been not on the politically correct right side.  And I do think there‘s a little bit of fancy footwork here to make sure he gets on the other side in advance.

MATTHEWS:  Is this the latest version of a Strom Thurmond pirouette? 

HARRIS:  You know, I think it is.  That‘s well said. 

MATTHEWS:  OK, thank you.  I try to say things well. 

(LAUGHTER)

MATTHEWS:  Thank you very much, John Harris.  Good luck with your book, “The Survivor.” 

HARRIS:  I appreciate it.

MATTHEWS:  The honest book on Bill Clinton. 

Anyway, Debbie—Deborah, thank you.  Deborah—I didn‘t mean to call you Debbie—Deborah Orin, bureau chief for “The New York Post,” which I love, and Michael Duffy, a hot front cover, Gitmo. 

We‘ll be back tomorrow night at 7:00 Eastern for more HARDBALL. 

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

END

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

Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant,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 Voxant, 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

,