updated 8/12/2005 9:19:54 AM ET 2005-08-12T13:19:54

Guest: Hilary Rosen, Melanie Morgan, Vicki Saporta, Ben Ginsberg, Kristen Breitweiser

DAVID GREGORY, GUEST HOST:  President Bush meets with his war council in Crawford today and tries to make the case that the situation in Iraq is improving.  Can he convince the American people to stay the course? 

I‘m David Gregory at the White House tonight.  Let‘s play HARDBALL. 

And good evening from the White House.  I‘m David Gregory, in for Chris Matthews tonight. 

President Bush met with his national security team at his Texas ranch, with the war on Iraq at the top of the agenda, a war that has become especially deadly for American troops in recent days. 

(BEGIN VIDEOTAPE)

GREGORY (voice-over):  Since August 2, when the president left for a vacation on his Texas ranch, 38 American troops have died in Iraq.  It is that grim reality of war that appeared to weigh on Mr. Bush today.  Flanked by his national security team, he took pains to address the public‘s growing opposition to the conflict. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I grieve for every death.  It breaks my heart to think about a family weeping over the loss of a loved one. 

GREGORY:  The president added, he has heard the call from war critics to pull out now. 

BUSH:  And I have thought about their cry and their sincere desire to reduce the loss of life by pulling our troops out.  I just strongly disagree. 

GREGORY:  Such a move, he argued, would embolden terrorists, also calling for a U.S. withdrawal.  The message, the president fears:

BUSH:  You know, that the United States is weak and all we‘ve got to do is intimidate and they will leave. 

GREGORY:  As for when troops will return, Mr. Bush dampened recent talk of an exit strategy today, saying that, even when his top commanders talk about a substantial drawdown from next spring, they are merely speculating. 

Additional troops may be needed when Iraqis vote on a new constitution.  But one military expert says the unspoken reality is that our troops in Iraq, now 138,000 strong, are spread too thin. 

RET. GEN. BARRY MCCAFFREY, NBC MILITARY ANALYST:  This level of deployment over this small an Army and Marine Corps is not sustainable beyond next summer. 

GREGORY:  Congressional war critics accuse Mr. Bush of failing to level with the public. 

SEN. JACK REED (D), RHODE ISLAND:  I don‘t think the president is making the point clear about that range of difficulty. 

(END VIDEOTAPE)

GREGORY:  Today, the president did highlight the progress, namely a political process moving forward and the ultimate goal, a free Iraq to serve as a bulwark against terror.  The question is, how long will the American public wait for the strategy to pay off? 

Retire General Wayne Downing is an NBC News military and terrorism analyst and has been to Iraq five times since the war began, traveling extensively in the north and south. 

General Downing, welcome. 

RET. GEN. WAYNE DOWNING, NBC MILITARY ANALYST:  Thanks, David.  Nice to be here. 

GREGORY:  You know this president.  You know how he talks and feels about this war in Iraq. 

When you hear him talk the way he did today, as I have reported from his meeting down at the Texas ranch, is this a president who is resigned to the fact that he has to confront the opposition to this war in this country head on? 

DOWNING:  Well, I think this is a wartime president, David, who is telling the American people that—that he feels the pain that these families are feeling when they—when they have casualties.  I—I certainly applaud him for doing that. 

And I will tell you something that‘s bothered me from the beginning, as this conflict has taken on strictly partisan type—type of an issue, is that I think it is not helpful at all to have the opposition party attacking the president and what he‘s doing, because, you know, no matter which party is in power, no matter which president we have, they‘re going to be faced with many, many of these same problems that face President Bush.  And, believe me, the alternatives are not going to be that much different. 

GREGORY:  General, do you think it is appropriate now, from a military standpoint, to set a date certain to begin a drawdown of troops? 

DOWNING:  Well, I‘m really against setting any kind of a date, David, because the drawdown of our forces is going to have to be predicated upon what is going on, on the ground, in other words, the conditions. 

And to be able to say, next spring, we‘re going to start pulling people out is absolute folly.  And I think we have heard from some senior military people that they just doubt that this can happen.  They doubt—even if these elections go off as planned, and we hope that they do, that they are not going to be able to pull anything out until the summer.  But probably the more realistic date is two years from now. 

GREGORY:  Tell—I don‘t know whether the American public really understands how we‘re going about the business of training Iraqi security forces.  And the president talked about this in not much detail today, kind of a glancing blow, that we have American troops embedded with Iraqi units.  How does this actually work and is it working? 

DOWNING:  Well, the indications are, David, is that the program to train the Iraqis is working very well. 

The unfortunate thing is, we started probably a year late on it.  We probably should have started right after we took control of the country.  But, as it was, we started last year, really about 15 months ago.  We put probably the top lieutenant general we‘ve got in the United States Army, Dave Petraeus, who commanded the 101st Airborne Division over there during the war, we put him in charge of this training effort. 

They‘ve made material gains.  You know, I think, right now, we‘re fielding something like 105 battalions out there, whereas, a year ago, 15 months ago, you only had one or two.  We‘re actually embedding U.S.  advisory teams down in each one of these Iraqi formations.  And, of course, you know, they‘re there to give advice and they‘re also there to help coordinate things and get them U.S. fire support and intelligence support when they need it. 

And, David, this is the key.  This security thing is the key to the political processes, the economic and the social processes that are going to have to go on to make Iraq a new democracy. 

GREGORY:  The reality, though, General, is that we‘re waking up every day and getting on the computer or listening to our clock radio or turning our television sets and hearing about the death of American troops, almost on a daily basis. 

DOWNING:  Right. 

GREGORY:  I mean, 38 troops killed since the 2nd of August, how do you explain that to the American people as a kind of commentary on the progress of the war? 

(CROSSTALK)

DOWNING:  Well, David, it is a very, very tough thing.

And something that I have thought about many, many times is, you know, what would it have been like if Franklin Delano Roosevelt had to explain the losses that went on during World War II to the American people every day, or Harry Truman during the Korean war?  Lyndon Johnson had to do a little bit of that, but we had nothing like the coverage that we have today. 

So, it is very, very difficult to explain those losses.  But the only thing you can do, I believe, is, you‘ve got to be honest, direct with the American people.  You‘ve got to tell them what‘s out there.  You have got to tell them that it is going to be painful.  And you‘ve got to manage their expectations.  And that—of course, that is what a politician is supposed to do.  And I think this president can do that. 

GREGORY:  What convinces you that we are going to defeat the insurgency when the insurgency is gaining momentum, gaining support from outside of Iraq, and, in effect, we‘re creating as many jihadists as we may be killing? 

DOWNING:  Well, listen, I think the most important thing, David, and

the strategic value of these elections cannot be understressed.  If they‘re

able to write this constitution—and they‘re getting close—and they

ratify it in the middle of October, and they have the final elections under

this new constitution, or at least the first ones, there in December, this

is a strategic victory of the first magnitude, just like the one was last -

·        last January. 

And one of the things that heartens me, that, in modern times, no freely elected government has ever been defeated by an insurgency.  Now, I think it is poppycock to think this insurgency is going away in six months or a year.  It might take five years.  But that political process that creates that state, and especially if we get a decent Sunni buy-in this time, I think gives the new Iraq a real good chance at survival. 

GREGORY:  And that...

(CROSSTALK)

DOWNING:  But it‘s not going to be pretty. 

GREGORY:  That deadline for the drafting of the constitution is August 15. 

General Wayne Downing, thanks very much for your views tonight. 

DOWNING:  Thanks, David.   

GREGORY:  And we will have much more on Iraq later in the hour. 

When we return, however, 9/11 Commission members want to know whether a secret military unit withheld intelligence identifying Mohamed Atta and three other 9/11 hijackers as al Qaeda members more than a year before the attacks.  We will hear from a widow whose husband was killed on September 11.

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

GREGORY:  Coming up, reports that military intelligence identified Mohamed Atta and three other hijackers as al Qaeda members before 9/11.  Reaction from a woman who lost her husband in the attack.

HARDBALL returns right after this.

(COMMERCIAL BREAK)

GREGORY:  Was valuable information that could have averted the 9/11 attacks lost in a bureaucratic maze? 

According to Curt Weldon of Pennsylvania, Mohamed Atta, ringleader of the 9/11 attacks, was identified as being part of an al Qaeda cell in the United States back in the summer of 2000, more than a year before the attacks.  This information came from a secret military operation code-named Able Danger.  It was not passed along to the FBI.  And it was left out of the report issued by the 9/11 Commission, even though commission staffers were briefed on it. 

I‘m joined by Kristen Breitweiser, who lost her husband on 9/11 and was a strong advocate in the creation of the 9/11 Commission that investigated the attacks.  We‘re also joined by NBC News counterterrorism analyst Roger Cressey, who was on the National Security Council during the 9/11 attacks. 

Welcome to both of you. 

Kristen, let me start with you. 

The 9/11 Commission is—is holding back in terms of a response yet, as they gather more information from the Defense Intelligence Agency.  And one of the points that‘s been made clear by them reportedly is that, when they initially got this information, it didn‘t square with information they had on the whereabouts of Mohamed Atta at that time.  And so, it wasn‘t given full credibility. 

What is your reaction to all of this, as you‘ve learned about it?

KRISTEN BREITWEISER, 9/11 WIDOW:  Certainly, it is a disturbing turn of events.  If the information turns out to be accurate, I think that the commission report will be completely discounted, in the sense that this is not an insignificant piece of information. 

You were talking about a special-ops team identifying four key hijackers, hijackers that had contacts with the other hijackers while they were in the country.  They traveled in and out of the country for the year prior to 9/11.  They took practice flights on domestic flights.  They attended flight schools.  They had contacts with the other hijackers, receiving money transfers from overseas, had contacts with Ramzi Binalshibh, Khalid Shaikh Mohammed. 

This is not an insignificant piece of information.  And had they been identified, I would like to know why that information was not passed on to the FBI.  Furthermore, I would like to know, if it was not passed to the FBI, who was it passed on to? 

GREGORY:  Well, you‘ve long suspected that U.S. intelligence was tracking the hijackers, haven‘t you? 

BREITWEISER:  Yes. 

I mean, I think, obviously, if you look at the historical record, it seems odd that they were able to a simulate so much information immediately after the attacks on the hijackers.  They were able to get their photos.  They swarmed into flight schools within hours of the attacks. 

For a group of agencies that were completely inept and in the dark, according to the official story, prior to 9/11 about these hijackers being in this country, being fully embedded, planning this attack, they certainly got their information together within 24 hours of those attacks.  And, sadly, since that time, we haven‘t learned much more, except these sorts of revelations, you know, that the CIA knew certainly an awful lot about al-Midhar and al-Hamzi while they were in this country for 18 months prior to 9/11. 

And now we‘re finding out that, apparently, the Pentagon knew an awful lot about Mohamed Atta, al-Shehhi, al-Midhar and al-Hamzi. 

GREGORY:  Roger Cressey, what do you make of all this so far? 

ROGER CRESSEY, NBC COUNTERTERRORISM ANALYST:  I‘m not prepared to go too far with this just yet.  I think, if the story is actually correct, and then what Kristen says is true.  But I don‘t think we are there yet.

There are two big issues, David.  The first one is, how did Special Operations Command, how were they able to corroborate Atta as an individual as part of an active al Qaeda cell in the United States using open-source data mine?  And we do not know of any intelligence reporting that they used at this time.

(CROSSTALK)

GREGORY:  Well, so, give me an example of that, the data mining.  Give me an example of what they could have used.

CRESSEY:  Well, you can use open-source techniques using computer software.  You put Mohamed Atta‘s name into a database and then all available information that‘s in the Internet comes together and can paint a picture of him. 

But, David, that‘s not the issue, because, from my information, Able Danger was able to identify hundreds of people of concern.  The question is, was Atta identified as a member of an al Qaeda cell, in an active and operational cell?  We do not know the answer to that yet.  So, before we jump to conclusions on this, we need to get that bottom line squared away. 

GREGORY:  Do you think, Roger, as well, that, given how thorough the 9/11 Commission was—and both sides of the aisle, there‘s certainly agreement on that—that they were right to be cautious about this, if they had other intelligence, other information that didn‘t square with something as simple as where Atta was at a period of time, that may have been sourced back to Able Danger?

CRESSEY:  The 9/11 Commission report is the definitive report on what happened.  So, they had to be careful that whatever they put in there was source, was corroborated, and they weren‘t taking individual strands of data. 

David, some of what is coming out of Capitol Hill right now is, frankly, a load of crap.  And we need to get down to square, to the bottom truth here, and not jump to conclusions and, more importantly, David, put this episode in the context of other examples where there was a lack of information sharing, because there were far more significant ones in the course of the 9/11 Commission report that‘s been documented than this one right now. 

GREGORY:  Kristen, isn‘t that the...

BREITWEISER:  David...

(CROSSTALK)

GREGORY:  Well, go ahead.  Go ahead.

BREITWEISER:  If I could just jump in—if I could just jump in for a second, I particularly would like to ask Roger directly if he had known about this operation.  Clearly, he and Richard Clarke were in a position at the time that this operation would have been put in place to know of such a thing. 

And, Roger, I‘m just wondering, did you know this? 

CRESSEY:  No, not at all.  This was not shared with the National Security Council staff. 

(CROSSTALK)

CRESSEY:  And, Kristen, let me say that, if this information is correct, the real—the central issue is, why was it not shared with the counterterrorism policy community?

(CROSSTALK)

CRESSEY:  Because that where this could be acted upon.

GREGORY:  Let me just interject for a second.

Roger, why wouldn‘t that be something that would be shared with you when you were doing that kind of work at the time? 

BREITWEISER:  Right. 

CRESSEY:  If this was an internal DOD effort and it was being done by SOCOM, then it would be up to the Pentagon itself to determine what came into the policy-making realm. 

(CROSSTALK)

CRESSEY:  And, if this is accurate, then this is a case where it wasn‘t shared. 

GREGORY:  Right. 

(CROSSTALK)

GREGORY:  Kristen, isn‘t—isn‘t—isn‘t the sad truth about all of this, as Roger points out, there are so many clear, glaring examples of information not being shared from the left to the right hand of the government, that this would be just another incredibly sad and devastating example of that, or do you think this is something completely unique? 

BREITWEISER:  You know, David, I think this takes the threshold beyond another mishap. 

You‘ve got situations with the CIA failing to give information to the FBI.  You have testimony from FBI agents saying that everything that possibly could have gone wrong went wrong.  I think we‘ve passed the point of this being an institutional failure.  These were failures on behalf of certain individuals.

It is startling to me to think that, if this operation did in fact occur, that someone with Roger Cressey‘s credentials in his position didn‘t know about it.  I would like to know what level of secrecy this operation was carried out under.  And, furthermore, I have a page from the joint inquiry of Congress.  It is a chart in the back of the book.  It‘s from page 28.

And it says late 1999, Midhar at UBL camp in Afghanistan.  Winter 1999, Mohamed Atta reportedly cited at UBL facility in Afghanistan, Marwan al-Shehhi at UBL guest house in Kandahar. 

Well, if it says reportedly sighted, I would like to know who reportedly sighted them in 1999, if this operation did in fact not occur?

GREGORY:  Roger? 

CRESSEY:  I think it is a very good question. 

You know, the 9/11 Commission says in one of its footnotes that, in its debrief of Ramzi Binalshibh and Khalid Shaikh Mohammed, if they had known that Zacarias Moussaoui was captured, was in custody, they probably would have called off the 9/11 attack.  To me, that example of a lack of FBI information sharing is far more significant than what we‘re dealing with right now. 

(CROSSTALK)

BREITWEISER:  I think, Roger, you‘re exactly right. 

(CROSSTALK)

BREITWEISER:  Roger, you‘re exactly right. 

These four gentlemen had all contacts with Moussaoui.  They went to the same flight school that Moussaoui was arrested at.  And, furthermore, I just want to add that this was from the joint inquiry of Congress.  This did not from interrogation of detainees. 

GREGORY:  All right. 

BREITWEISER:  This was from the joint inquiry of Congress. 

CRESSEY:  That‘s right. 

BREITWEISER:  So, information was information that they gathered from intelligence community files.  And I would like an answer as to whether this operation was out there.

And, finally, I want to know why the commission did not put it in its report. 

GREGORY:  Well, and—and—and it—that question is going to remain unanswered, at least for tonight, as the 9/11 Commission kind of gets together, reviews what it was told and when and, presumably, in the days ahead, will let us know that answer. 

My thanks to Kristen Breitweiser and Roger Cressey for being with me tonight. 

BREITWEISER:  Thanks very much.

GREGORY:  And, up next, President Bush signs the $286 billion highway bill into law.  But critics say it‘s paved with pork.  We will have some of the more egregious examples when HARDBALL returns right after this.

(COMMERCIAL BREAK)

GREGORY:  I‘m David Gregory, reporting from the White House tonight.

President Bush this week signed the $286 billion highway bill.  And while it‘s designed to help rebuild the nation‘s highway infrastructure, it‘s also bringing a pork-barrel project to almost every incumbent in Congress.  Critics say the wasteful spending is an embarrassment.  And, at the top of the list, they point to Alaska.

HARDBALL correspondent David Shuster reports.

(BEGIN VIDEOTAPE)

DAVID SHUSTER, NBC CORRESPONDENT:  In Alaska, it will be known as the Gravina Island Bridge.  The six-mile-long structure will connect Alaska‘s mainland to an island that has a total of 50 people.  The cost, $223 million; $100 million is for the design and construction; $48 million is for the earthwork and roadway plan, and $75 million is for a variety of other costs. 

TOM SCHATZ, CITIZENS AGAINST GOVERNMENT WASTE:  The money for the bridges in Alaska is just ridiculous. 

SHUSTER:  Critics note this bridge, which will be high enough for cruise ships to pass underneath, is going to cost the federal government more than it would cost to give every Gravina Island resident a brand new executive helicopter. 

The bridge was added to the highway bill by Alaska Republican Don Young, chairman of the House Transportation Committee.  According to a spokesman—quote—“This bridge is important.  It‘s the number two project for the state.  So, there are others besides the federal government who see this as a priority.”

Another alleged priority is a bridge in Anchorage.  It will be called Don Young‘s Way and will cost $232 million.  The highway bill, which is paid for by the 18-cents-a-gallon federal gasoline tax, also calls for snow mobile trails in Vermont, $5.9 million, dust control on rural roads in Arkansas, $3 million, and landscaping on the Ronald Reagan Freeway in California, $2.3 million. 

Ironically, it was Ronald Reagan who vetoed a highway bill in 1987 because he said it had too much pork.  That bill had 152 pet projects, costing $1.4 billion.  The bill President Bush signed has 6,371 pet projects, totalling $24 billion.  That‘s 8 percent of the spending that is all supposed to go for interstate highways. 

But there is money for museums, trolleys, bike paths, and roadways that local communities didn‘t ask for. 

SCHATZ:  And Speaker Hastert got about $500 million in projects on his own, including one that it was actually still under study by the Illinois Department of Transportation, and the state hadn‘t even decided whether to fund it yet. 

SHUSTER:  The big winner, though, was Alaska.  It is the third least populated state, but it got the fourth most in highway bill earmarks, a total of more than $941 million. 

(on camera):  This, of course, is something Alaskans are used to.  Only eight members of the House and four in the Senate voted against this bill, giving Congress plenty of room to override any possible veto.  And never mind Alaska‘s Don Young chairing the Transportation Committee.  Republican Ted Stevens Until this year chaired the Senate Appropriations Committee.  And that means Alaska should score in a big way again when the appropriations bill come out next spring. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

GREGORY:  David, thanks very much. 

Up next, a new TV ad released by the National Abortion Rights Action League criticizes Supreme Court nominee John Roberts, saying that he excused abortion clinic violence.  We will hear from both sides on that issue.

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

(NEWS BREAK)

GREGORY:  And welcome back to HARDBALL.  I‘m David Gregory, in tonight for Chris. 

With less than a month to go before the Senate begins hearings on the nomination of Judge John Roberts for the Supreme Court, conservative and liberal groups are taking their fight now to television.  The abortion rights group, NARAL Pro-Choice America is launching an opening salvo this week with a commercial suggesting Judge Roberts sided with violent extremists and an abortion clinic bomber. 

Let‘s take a look.

(BEGIN VIDEO CLIP, NATIONAL ABORTION RIGHTS ACTION LEAGUE AD)

NARRATOR:  Seven years ago, a bomb destroyed a woman‘s health clinic in Birmingham, Alabama. 

EMILY LYONS, BOMBING SURVIVOR:  When the bomb ripped through my clinic, I almost lost my life.  I will never be the same. 

NARRATOR:  Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber. 

LYONS:  I am determined to stop this violence, so I am speaking out. 

NARRATOR:  Call your senators.  Tell them to oppose John Roberts.  America can‘t afford a justice whose ideology leads him to excuse violence against other Americans. 

(END VIDEO CLIP)

GREGORY:  Calling this TV ad a false and reckless attack against the judge, the conservative Progress For America Voter Fund is releasing its own message, a counter to NARAL‘s claims. 

Let‘s watch that. 

(BEGIN VIDEO CLIP, PROGRESS FOR AMERICA VOTER FUND AD)

NARRATOR:  When John Roberts was nominated, he was met with wide praise from Republican and Democrats.  But with little to attack in Roberts‘ superb record, liberals are taking the low road, what newspapers call a witch-hunt.  A far-left Democratic group is making a desperate and false attack, recklessly distorting Judge Roberts‘ record. 

But the Senate unanimously approved Judge Roberts after a thorough review of his record just two years ago.  How low can these frustrated liberals sink? 

(END VIDEO CLIP)

GREGORY:  Here representing both sides of this budding ad war over Supreme Court nominee Roberts are Vicki Saporta, president of the National Abortion Federation, and Ben Ginsberg of Progress For America. 

We should point out, the president of NARAL, Nancy Keenan, canceled an appearance on HARDBALL tonight.  And the group declined to provide a representative to back up this ad. 

Let me start with you, Vicki Saporta.  We will have to turn to you to defend the ad.  Is it accurate? 

VICKI SAPORTA, NATIONAL ABORTION FEDERATION:  I think the ad vividly portrays the reality abortion providers face to this day. 

What you need to understand was that, in 1991, abortion clinics were under siege.  There were bombings, arsons, blockades, thousands of arrests.  And judges throughout the country were issuing injunctions under federal law to keep the peace. 

And, instead of understanding that reality, John Roberts chose to side with violent extremists against women who were seeking reproductive health care services. 

GREGORY:  How about my question, though?  Is the ad accurate, the claims against John Roberts? 

SAPORTA:  I think it is important to understand that there were consequences to Judge Roberts‘ siding with these extremists.

(CROSSTALK)

GREGORY:  I‘m sorry, but can‘t you just answer that directly? 

(CROSSTALK)

GREGORY:  Is it accurate or isn‘t it? 

(CROSSTALK)

GREGORY:  Hold on one second.  Hold on one second.  It‘s a pretty straightforward question.  And you seem to be sidestepping it.  Is the substance of the ad accurate? 

SAPORTA:  I think we‘re here to examine John Roberts‘ record and that‘s what‘s really important and that he chose to bring the weight of the federal government down on the side of the extremists, instead of on the side of federal judges who were issuing injunctions to keep the peace, instead of on the side of women who were seeking reproductive health care services. 

And the question is whether he is fit to be elevated to the Supreme Court for a seat that Justice Sandra Day O‘Connor is vacating. 

GREGORY:  All right. 

SAPORTA:  Does his rigid ideology...

GREGORY:  Right. 

SAPORTA:  ... put him in a place where we want to see him elevated to the Supreme Court?  I think not. 

GREGORY:  Before I bring Ben Ginsberg into this, I want to put up on the screen for our viewers to see the conclusion by factcheck.org, an independent group that evaluates these ads. 

And the group concluded the following—quote—“The ad uses the classic tactic of guilt by association, linking Roberts with—quote—

‘violent fringe groups‘ and a ‘convicted bomber‘ because he made the same legal arguments as they did in the case.  But, contrary to the ad‘s message, Roberts didn‘t argue in favor of them or their actions.”

Ben Ginsberg, is this an accurate ad? 

BEN GINSBERG, PROGRESS FOR AMERICA:  No, not at all. 

I mean, factcheck.org had it exactly right, in saying this ad is false and that statements in it are misleading.  And what‘s truly remarkable about that ad, David—and this is truly unfortunate as well—is that that ad contains nothing about the real issues that may be about a Supreme Court nominee. 

GREGORY:  All right. 

GINSBERG:  It is pure character assassination.

GREGORY:  But...

GINSBERG:  And, unfortunately, that‘s where the left has had to go because John Roberts is such a qualified nominee. 

GREGORY:  All right, but why don‘t—why don‘t we talk about the substance of this particular case, and what John Roberts was arguing at the time?  I mean, how do you put into a different context, the accurate context, in your view, what he was actually saying in this case? 

GINSBERG:  Well, let‘s remember that a six-judge majority of the Supreme Court, including Justices Kennedy and Souter, who Vicki would probably agree with their views on the subject of abortion, said this is a case of statutory construction, that a statute that is designed to do one thing can‘t do another. 

And that is a matter of law, not about condoning abortion bombing or any of the scurrilous charges in the ad.  As a matter of law, the law that was being used, the 1871 Ku Klux Klan Act, can‘t be applied as a matter to rid discrimination on these abortion protesters. 

SAPORTA:  You know, Sandra—Justice Sandra Day O‘Connor dissented, because she understood that this law needed to be interpreted broadly.  She understood the context of the violence that was taking place.  John Roberts did not. 

And there were consequences to that Supreme Court decision. 

Extremists were emboldened.  Violence continued.  Injunctions were lifted.  And Congress had to intervene the following year to pass the Freedom of Access to Clinic Entrances Act in order to bring in the federal government to protect women‘s access to reproductive health care services. 

GINSBERG:  David, what Vicki is saying is that they believe that their end is so right that it is OK to put out false and misleading ads, to debase the process in a way that it should not be debased. 

Both Democrats and Republican talked about wanting to make this a dignified confirmation process.  Now, when you have ads that are labeled as false and misleading by nonpartisan groups, what you‘ve done is thoroughly debase this process.  Senator Lindsey Graham said the Senate would be on trial in this process.  And what NARAL and this ad and Vicki‘s arguments in this case have done is put tremendous pressure on Democratic senators to say that this ad should be pulled, so that you can get back to having a dignified process. 

GREGORY:  Vicki, is—is, in fact, the overall goal here to raise the level of controversy about Judge Roberts?  Is it to force this debate about his views on abortion generally into the conversation, effectively? 

SAPORTA:  I think this ad raises important issues about Judge Roberts‘ record. 

We know that we don‘t know where he stands on privacy.  We do know that he has argued before the Supreme Court and co-authored a brief saying that Roe was wrongly decided and should be overruled.  We know he chose to take the side of violent extremists against violent women.  We know that these views don‘t coincide with those shared by the majority of Americans.

(CROSSTALK)

GREGORY:  Hold on one second.  Hold on.  Excuse me.  Wait a second. 

You can‘t just filibuster on this program. 

Do you really believe that he had made a conscious choice to side with violent extremists?  Do you think that was his intent?  Is that what you want to try to convince people, is the fact about Judge Roberts? 

SAPORTA:  The government could have done three things.  It could have done nothing.  It could have come in on the side of women who were being assaulted outside of clinics, or it could have come in on the side of violent extremists. 

He chose to bring the weight of the federal government on the side of violent extremists and not on the side of women or of judges who around the country were using this very federal statute in order to issue injunctions, in order to keep the peace, and, as one federal justice said, so there wouldn‘t be bloodshed in the streets. 

And since he had such a rigid view of the law, we have seen the consequences of that. 

GREGORY:  Right. 

(CROSSTALK)

SAPORTA:  And this is not a moderate judge who should be replacing Sandra Day O‘Connor. 

GREGORY:  Ben, Vicki cites one of his memos from the Reagan administration.  He also authored a memo, as has been reported on HARDBALL by David Shuster this week, opposing the work of violent extremists, and that they were committing crimes and they ought to be prosecuted. 

But on this specific question, did Judge Roberts make the wrong call? 

Was this the wrong interpretation of the law? 

GINSBERG:  No, it was the right interpretation of the law, as the 6-3 majority of the Supreme Court that, including Supreme Court justices who take Vicki‘s side on Roe v. Wade and those general issues. 

Look, Nancy Keenan and NARAL, that won‘t even come on the program to defend the ad, had the disingenuous statement at their press conference that, of course, they weren‘t trying to imply that John Roberts sided with those who condoned violence.  Now, Vicki said something different right here. 

But the fact of the matter is, is that NARAL, even while saying that‘s not what they meant to imply in the ad in the news conference, that is most undoubtedly what the ad implies. 

GREGORY:  All right.  We are...

GINSBERG:  This is the worst kind of personal mudslinging. 

GINSBERG:  We‘re going to come back, talk more about this and about other aspects of the fight over John Roberts. 

We‘re back in just a moment with Vicki Saporta and Ben Ginsberg.

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

GREGORY:  Coming up, the budding ad war over Supreme Court nominee John Roberts.  Plus, President Bush sympathizes with a woman whose son was killed in Iraq, but will he meet with her again?

HARDBALL returns right after this.

(COMMERCIAL BREAK)

GREGORY:  We‘re back with Vicki Saporta of the National Abortion Federation and Ben Ginsberg of Progress For America, talking about the budding ad war over John Roberts. 

Let me put you both on the spot with different questions. 

And, Vicki, let me start with you. 

This afternoon, Senator Specter has come out, calling on NARAL to pull this ad down.  You even had Senator Leahy saying that the advocacy groups should not be spending and shooting all their ammo right now and that they should cool off before the process starts.  So, pulling back from the substance of this, tactically, is it wrong to come out with something that is so hard, that is so pointed, that you have to sort of spend time defending the substance of it?  Does it hurt the cause? 

SAPORTA:  I think that John Roberts needs to defend his own record and explain why he chose to bring the weight of the federal government on the side of a convicted bomber, violent extremists, against women who were seeking access to reproductive health care services.  I think this is a very important question that he needs to answer, that the American public wants answers to. 

GREGORY:  Ben, is there any way around the fact that John Roberts will come under increasing pressure to give a very full treatment to his views on abortion? 

GINSBERG:  Well, I think John Roberts will have to talk about certain basic principles, as all nominees do. 

But it‘s always instructive to see what the Senate has done in other cases.  Joe Biden, Senator Biden, told Ruth Bader Ginsburg that you not only have a right to choose what you‘ll answer or not answer, but, in my view, you should not answer a view of what your view will be on an issue that clearly is going to come before the court. 

And so, that‘s the simple standard that ought to be used here.  But, sure, he is going to have to let the American people know about what he is and how he thinks, without going into area that, in a bipartisan fashion, senators of both parties and nominees from both parties‘ presidents have not had to venture into. 

(CROSSTALK)

SAPORTA:  You know, the White House knows where he stands on Roe, where he stands on faith...

GINSBERG:  So do you guys, apparently.

SAPORTA:  ... and where he stands on a lot of these issues. 

And the American people deserve to know the answers to these questions. 

(CROSSTALK)

SAPORTA:  Because they want a moderate justice on the Supreme Court. 

GREGORY:  Right. 

SAPORTA:  Someone who would uphold Roe v. Wade. 

GREGORY:  Vicki, final thought here.  Short of him saying how he would vote on Roe v. Wade, what do you expect from Judge Roberts? 

SAPORTA:  I think he needs to answer some very serious questions.  And I think he does need to answer questions about his views on privacy and about Roe and why he chose to intervene on behalf of extremists.  I think he owes the American public those answers, because they want a moderate judge to replace Sandra Day O‘Connor.  And this is not a moderate judge. 

GREGORY:  All right. 

(CROSSTALK)

GINSBERG:  Of course, their ad talks about none of those issues, David. 

GREGORY:  All right. 

GINSBERG:  It‘s pure character assassination. 

GREGORY:  We are going to—we are going to leave it there, to be continued, for sure.

Thanks very much to Vicki Saporta and Ben Ginsberg.

(CROSSTALK)

GINSBERG:  Thanks.

GREGORY:  And, when we return, President Bush says he sympathizes with a mother who lost her son in Iraq, but she continues to hold vigil outside the president‘s Texas ranch, demanding to meet with him. 

The latest on that story when HARDBALL returns.

(COMMERCIAL BREAK)

GREGORY:  On the same day President Bush met with his foreign policy team at his ranch in Crawford, Texas, he said he had sympathy for a woman whose son was killed serving in Iraq.  That woman, Cindy Sheehan, has been waiting outside the president‘s ranch, demanding to meet with him. 

(BEGIN VIDEO CLIP)

BUSH:  And I sympathize with Mrs. Sheehan.  She feels strongly about her position.  And I—she has every right in the world to say what she believes. 

(END VIDEO CLIP)

GREGORY:  Melanie Morgan, a conservative radio talk show host, has been in e-mail correspondence with the Sheehan family on the father‘s side and was sent the following statement just this morning: “The Sheehan family lost our beloved Casey in the Iraq War and we have been silently, respectfully grieving.  We do not agree with the political motivations and publicity tactics of Cindy Sheehan.  She now appears to be promoting her own personal agenda and notoriety, at the expense of her son‘s good name and reputation.  The rest of the Sheehan family supports the troops and our country and our president, silently, with prayer and respect.”

Melanie Morgan joins us now.  And she‘s joined as well by Hilary Rosen.  Welcome to both of you.

HILARY ROSEN, DEMOCRATIC STRATEGIST:  Hi, David.

MELANIE MORGAN, RADIO TALK SHOW HOST:  Thank you. 

GREGORY:  Melanie, let me begin with you.  Does Cindy Sheehan have something important to say? 

MORGAN:  I think that Cindy Sheehan believes that she has something very important to say and she has the right to say whatever it is she wants to say. 

But that doesn‘t mean because the mainstream media has portrayed her as a very sympathetic, lone grieving money, that actually represents the case.  In fact...

(CROSSTALK)

GREGORY:  Well, hang on one second.  Hang on.  Let me just—I can‘t let all these mainstream media attacks go by. 

How has the media done that?  I will grant that you there‘s a news vacuum in August and she‘s become a national figure, when perhaps, another part of the year, she may not have.  But let‘s not get so far away from this process that we don‘t say that this is a grieving parent who lost a son in the war.  So, I mean, you just assume that the media is trying to prop her up? 

MORGAN:  Well, all you have to do is take a look at the front pages of every daily newspaper in America today and read the descriptions of her as a very sympathetic person, which is not to say that she isn‘t.  She is grieving.  She is sympathetic, but she is also a person who has had a political agenda for a lot longer than her son has been dead. 

She is a member of several organizations.  Let me read them to you.  She co-founded an anti-war activist group before Casey died, Gold Star Families For Peace.  She‘s aligned herself with MoveOn.org, Code Pink.  And she‘s stating her case.  She has that right.  But other families in this country, 1,800 of them, in fact, are grieving as well.  But they don‘t get the opportunity to say on television, like she‘s doing every single night for endless amounts of time, that they do respect the president and that he did not cause their son‘s death, nor hers. 

It was the insurgents in Iraq, who are viciously slaughtering every man, woman and child they can blow up.  And those include civilians, as well as American troops. 

(CROSSTALK)

GREGORY:  Hilary, Hilary, the reality is that President Bush did meet with Mrs. Sheehan on a prior occasion.  He obviously knows where she is coming from.  He spoke about her again today.  What more should he be doing? 

ROSEN:  Well, first of all, to attack this woman who lost her son is just about the most despicable thing I have ever heard. 

And Gold Star Families For Peace, an organization she founded, was founded by other families who also have children who have been wounded or lost in the war.  So, what she is saying is the same thing that a majority of American people are saying.  Mr. President, we want to know the truth.  When the truth—when what we hear from you matches what we see in the papers and on television, then we will feel better.  But, so far, it doesn‘t. 

(CROSSTALK)

ROSEN:  Tell us why we‘re not winning.  Tell us what the insurgency is.  Tell us what it has—we have to do to get out of there.  None of these things are being done. 

So, what happens is, every time an effective spokesperson or something penetrates the American public‘s consciousness, like Cindy Sheehan has, the right wing and the president‘s allies go on the attack.  And instead of—and so, we lose silence and arrogance and we get attacks. 

GREGORY:  But, Hilary, her son, Casey, got bled him, God bless him, volunteered for this project. 

ROSEN:  Right. 

GREGORY:  Has she gone beyond the pale in her criticism, beyond her rights, which I think are expansive as a mother of someone who has been lost in Iraq?  Has she gone beyond that in this case? 

ROSEN:  No. 

And let‘s remember, the entire Army right now is an all-volunteer force. 

GREGORY:  Precisely.

ROSEN:  In fact, 40 percent of the people fighting in Iraq are, in theory, part-time volunteers who have been there over a year beyond when they were supposed to be.  So, it is exactly because we have a volunteer Army that soldiers and their families need to understand the truth. 

They deserve the truth.  What is an exit strategy?  What will satisfy the president?  What does success look like?  That is not happening.  We‘re not getting that from the president. 

Melanie, Melanie, is there something else at work here, despite what you said about Mrs. Sheehan?  Is there not a kind of tipping point here, where a majority—and, certainly, the polls bear this out—of Americans are starting to raise their hands and say, wait a minute, this is not what we bargained for; this is not what the president said would happen; it‘s not even matching what the president is saying is happening on the ground?

MORGAN:  Well, this is what is so terribly frustrating, David, because I have been to Iraq.  I have been on the ground.  I have seen what‘s going on.

And it is not being reported accurately in the media.  I can tell you for a fact that the soldiers there are saying that we are winning the war, precisely because the insurgency miscalculated back in January that the elections would be a successful as they were.  They made a terrible mistake and now they know that they have to derail the upcoming elections, constitutional referendum elections, that are this month and again in December. 

And that‘s why they‘re fighting as viciously as they are and that‘s why they are in the last gasps of their insurgency, because, if we win—and, by winning, I mean those democratic elections—that means that we can start drawing down and coming home.  And that‘s what the troops told me and that‘s what the top brass told me. 

I agree that the president has done a very poor job of articulating why we are there.  And that‘s why I went to Iraq, along with half-a-dozen of my fellow talk show hosts, to get the message out. 

GREGORY:  Right. 

MORGAN:  The reason why there‘s a disconnect is because the media is not reporting the story as accurately as it is being experienced by our troops. 

GREGORY:  All right.  We are going to have to leave it there. 

The president, by the way, today said it was just speculation as to whether troops might begin to come home next spring, so a lot more to this. 

(CROSSTALK)

GREGORY:  My thanks to Melanie Morgan and to Hilary Rosen tonight.

Tomorrow on HARDBALL, a preview of “Justice Sunday II,” as conservatives rally to put their stamp on the Supreme Court.  Focus on The Family‘s Tony Perkins will join us. 

Right now, it is time for “COUNTDOWN.”  And Keith will be talking to Cindy Sheehan herself, the mother whose son was killed in Iraq—Keith.

KEITH OLBERMANN, HOST, “COUNTDOWN”:  Indeed, David.  Many thanks.

END

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