Guest: C. Boyden Gray, Ralph Neas, Tony Blankley, Katrina Vanden Heuvel, Frank Gaffney, Wesley Clark
CHRIS MATTHEWS, HOST: Tsunami politics. The Bush administration is spending millions of tax dollars and a pair of big American faces to fuel the effort in Southern Asia. Will this turned-on campaign jack up our image in Islamic countries? We‘ll talk to former presidential candidate General Wesley Clark.
Plus, Thursday‘s Senate Judiciary Committee hearings to consider President Bush‘s nomination of Alberto Gonzales to be attorney general promises to be punishing, as his critics jab at his role in setting U.S. policy on torture.
Let‘s play HARDBALL.
Good evening. I‘m Chris Matthews.
The death toll in the Asian tsunami is estimated tonight at 150,000. Secretary of State Colin Powell, touring the damage in Indonesia and Thailand, says he hopes the outpouring of American aid to tsunami victims will help Muslims countries the U.S. in a better light.
Retired General Wesley Clark is the former supreme allied commander of NATO. He‘s also a former Democratic Palestinians candidate.
General Clark, do you think the president is doing the right thing?
WESLEY CLARK (D), FORMER PRESIDENTIAL CANDIDATE: Well, I think we were slow to get off the mark here. I mean, people around the world look to the president of the United States to be a world leader, not just a leader of the American people.
But I‘m really encouraged with what our military is doing over there. I‘m delighted that Secretary Powell and Governor Bush are headed over there. I‘m happy with $350 million. Now we‘ve got to follow through. Remember, in the Islamic world, as in everywhere else, it‘s not what you say. It‘s what you do. And it‘s going to think a long record of consistent and conciliatory U.S. action to bring the Muslim world back on our side.
MATTHEWS: Is this consistent with Bush policy, this big aid effort?
MATTHEWS: In other words, reaching out to the world in a positive way, is this consistent with his track record or inconsistent?
CLARK: I think it‘s seen as inconsistent by much of the world. It‘s certainly consistent if you‘re going to say he‘s a compassionate conservative, which is the platform he ran on four years ago.
But, more importantly, this is not partisan. This is an issue that represents all Americans.
CLARK: Every American is disadvantaged by the negative image that President Bush has conveyed to the rest of the world.
MATTHEWS: By what?
CLARK: By his statements and by the other things that have come out over the administration‘s record. So, this is a chance to try to turn that around. It‘s in every American‘s interest for the president and for the United States to be perceived in a more positive fashion. I sure hope this works.
MATTHEWS: What do you think he made his brother, who may be a presidential candidate down the road, the carrier of this great message to the rest of the world?
CLARK: Well, I think it‘s a personal attachment. And I think the president must know...
CLARK: Is this to polish him up for a run as V.P. next time or president next time?
CLARK: Can‘t rule that out, Chris.
But, to me, I think it‘s the same way that John Kennedy would have used Robert Kennedy. It‘s just someone who is part of the family, to say, I can‘t do it, but I want to show you that I have a personal touch on this. I don‘t think it‘s bad politics. I think it‘s good.
MATTHEWS: Do you find it odd that the former president who has the most role to play in the last 20 years in terms of helping poor nations with disease and problems like this, smaller versions of this, Jimmy Carter, was not asked to participate? Do you find that interesting?
CLARK: Well, I think it‘s a terrible thing that he wasn‘t asked to participate. And I‘m sure that President Carter is going to do everything he can to help this effort.
MATTHEWS: Do you think it was partisan knocking Carter off the list?
CLARK: I don‘t know if it was partisan or not. But I will tell you what. Jimmy Carter is held in very, very high esteem around the world. I‘ve had people from every walk of life around the world tell me how much they think of President Carter. So it‘s in our country‘s interest that we put President Carter out there on the line as one of America‘s great representatives.
MATTHEWS: I felt I discovered a new Bill Clinton. You know him much better than I do. A new former President Bill Clinton yesterday. I saw a man who seemed to be not just enjoying the role as a nonpartisan world leader, but embracing it, saying, god damn it, I‘m finished with politics. Here‘s a chance to be nonpartisan. Here‘s a chance to be a world leader.
It looked to me—well, what did you think? A new version of the guy.
CLARK: I think Bill Clinton has a tremendous personality. He‘s a brilliant guy. And he‘s charismatic. And he is a great leader. And he‘ll do a great job in this mission, too.
MATTHEWS: Totally aboard with the president, no hint or showing a little ankle here or there or partisanship, absolutely embracing the president as a world partner, weren‘t you impressed by that?
CLARK: Well, I was impressed by the fact that...
MATTHEWS: But not surprised?
CLARK: ... they‘re trying to put a team together here that will represent this country the right way.
CLARK: I think what all Americans expect to see is a lot less partisanship and a lot more working together to deal with the issues this country faces.
MATTHEWS: I think it saw a Bill Clinton yesterday, maybe because of his health, because of the terrible threat to his health of his heart surgery, he‘s ready to kiss off politics completely and go for world leadership and try to get to a higher level.
Do you think that, like running the U.N.? That‘s what I think. I‘m not going to ask you to comment. But I really do think he wants to be head of the U.N. and get out of politics.
CLARK: I think he would be a great head of the United Nations. But I think this is his—as he‘s recovered from this operation, I think his horizons are open. And I think he‘s engaged at every conceivable level. This guy really makes a difference.
MATTHEWS: Do you think President Bush would endorse him for world leadership of head of the U.N. now that they‘re working together on this food issue over on that part of the world? You‘re laughing, but this is serious business.
CLARK: He would be smart—he would be smart to pick Bill Clinton to be the head after Kofi leaves.
Let me ask you about the whole question. You‘re a military man. You were supreme NATO commander. You know U.S. capabilities in the world. When we were all growing up, you and I, we always heard, well, we could fight 2 ½ wars, don‘t worry, with our hands tied behind our back or whatever.
Today, last night on the program, we had three generals. You respect them all, Meigs, Downing and McCaffrey. They were talking about the possibility that we were reaching our limits in terms of sea lift, airlift, especially, with all these planes, 15,000 troops going over to help with the relief effort, basically stretching our capability, given our war in Iraq. What do you think? Are we stretched to the limit?
CLARK: The ground forces are stretched.
Now, no one should misunderstand this. We‘ve got a lot of ground forces left in the United States. If there was an emergency somewhere, we could do it. But we couldn‘t maintain it like another Iraq theater simultaneously without really enhancing the strength of the ground forces.
MATTHEWS: We couldn‘t go into Syria, for example, with what we have?
CLARK: Well, we might after the election be capable of going into Syria. It depends on the outcome of the election. It depends on the status quo in other regions in the Middle East.
And, remember, you didn‘t mention the Air Force. And our Air Force is absolutely the best in the world. It‘s hardly flexing its muscles as it is right now. It was operating at a much higher tempo when we had Operation Southern Watch, Operation Northern Watch, when Saddam was still in power.
CLARK: So you‘ve got all those Air Force assets. They‘re there.
They can be used in the region. We‘ve got lots of ordnance.
MATTHEWS: You sound like you‘re open to the idea of further aggression by the United States, more occupations, more invasions than just Iraq and Afghanistan.
CLARK: I think that the military cards have slipped out of public view.
And, as a result, I think that we‘re not getting the kind of dialogue we need on this. I think Americans need to understand that this administration still has military options both in Syria and Iran and that the alternatives to those military options are effective, engaged diplomacy. And I don‘t see the effective and engaged diplomacy.
CLARK: Therefore, I think there‘s planning for military options. I think it‘s the wrong course at this point.
CLARK: But I think we need that dialogue. You started this dialogue, Chris, in the summer of 2002 about Iraq.
CLARK: And, at the time, people thought, well, what‘s going to happen? Why would we go into Iraq? And yet, right now, we‘re in that same period here with both Syria and Iran. There are military options available. There are people that I‘m told around town thinking about it.
CLARK: And there‘s not a discussion on it in the American...
MATTHEWS: Unfortunately, there wasn‘t enough debate before the last encounter, when we went into Iraq. I think we now know the costs and the difficulties of being in that country that we didn‘t know before.
Let me ask you about Alberto Gonzales, the president‘s counsel. He‘s up for—the president has put him up for attorney general. He‘s the man that laid out the guidelines, if you would call them guidelines, on torture of prisoners and the power of the presidency during the war in Iraq and Afghanistan. Do you think he‘s fit for the job?
How can the American people have confidence in a man like Gonzales after what he‘s written for the president of the United States? He‘s basically said the Geneva Convention was irrelevant. He basically said that torture is something that‘s very limited, that you could be in terrible pain and that you still wouldn‘t be being tortured.
MATTHEWS: Yes. He said we could have cruel, inhuman and degrading treatment of prisoners.
CLARK: And not have it be torture.
CLARK: And Mr. Gonzales has basically said the power of the presidency is unlimited and he can do anything he wants.
How can we feel confident as Americans that we‘re living under the rule of law when the attorney general has violated what we believe to be the law?
MATTHEWS: Well, let‘s just get this straight, so we don‘t sound like we‘re goody-two-shoes here. You‘re a military man. You‘ve commanded troops, many of them. You‘ve been in combat in Europe. What are the limits of interrogation, as you understand it to be?
CLARK: Geneva Convention, no question about it.
I mean, we would never have violated the Geneva Convention. You don‘t shoot prisoners. You don‘t do false—trick executions. You don‘t rough them up and beat them up.
MATTHEWS: Did we threaten to throw people out of helicopters in Vietnam?
CLARK: I have heard those rumors. I never saw it. And if it was ever done, I hope it was punished.
MATTHEWS: Did we hose people with hoses in their mouths until they talked?
CLARK: Not in any of my commands that I know of.
CLARK: And I‘ll tell you this.
In 1999, when we had three Americans captured by the Serbs at the start of the Kosovo campaign, they were put on television and one of them had a big black eye and looked like he was beaten up. We were outraged.
MATTHEWS: So you don‘t think water-boarding, as it‘s called, where you basically threaten a guy with drowning, you make him think he‘s going to drown, is acceptable?
CLARK: Absolutely not.
MATTHEWS: So Gonzales is not your man.
CLARK: I think strict Geneva Convention, strict adherence to the law.
MATTHEWS: Thank you.
CLARK: We put that law in place to protect our soldiers.
MATTHEWS: You can‘t officially do it anymore, but—you‘re retired. But do you think a lot of military men of your rank, flag rank, do you think that‘s a common view? McCaffrey certainly had it last night. Is this a general view you hear from military men?
CLARK: This is what we believe in.
We—look, we fought for the Geneva Convention. It was put in place to protect our soldiers, our values and our institutions.
CLARK: We can‘t win the war on terror if we give up what we stand for as the American people.
MATTHEWS: Would you testify against Gonzales on the Hill if they asked you?
CLARK: Well, I would testify against anybody who wrote those kinds of things. I don‘t know Gonzales personally. But how he could have written these documents is outrageous.
MATTHEWS: Strong words. Thank you, Wesley Clark.
You going to run for president again?
CLARK: Rule nothing out.
MATTHEWS: I love it.
Anyway, thank you very much, General Wesley Clark, still in the mix.
Coming up, we‘ll get a response from former Assistant Secretary of Defense Frank Gaffney, a different response, I think.
You‘re watching HARDBALL on MSNBC.
MATTHEWS: Coming up, Frank Gaffney on the war in Iraq and the fight over President Bush‘s nominee for attorney general, Alberto Gonzales.
HARDBALL returns after this.
MATTHEWS: Welcome back to HARDBALL.
Frank Gaffney is the president of the Center For Security Policy. He was assistant secretary of defense during the Reagan administration.
Frank, did you go along—I guess you would go along with the support that General Clark gave for the president‘s efforts in the Far East?
FRANK GAFFNEY, FOUNDER & PRESIDENT, CENTER FOR SECURITY POLICY: Yes.
Look, I think we‘ve got to do what we can. The question is, how much can we do? And the reality is, like Iraq before we got there, most of the places that were affected so horribly by the tsunami were not in very good shape before that happened. So pouring gigabillions of dollars into it even if we had it I think is not going to, in fact, make that much of a difference.
We do want to do humanitarian relief. We are doing it. And, by the way, Chris...
MATTHEWS: In other words, you would stick to relief and not to reconstruction?
GAFFNEY: I would concentrate immediately, of course, on relief, do what you can on reconstruction, but recognize there are limits to what we can do, even collectively as the community of nations.
GAFFNEY: One quick point.
GAFFNEY: We are in the midst now of a budget draw-down. It‘s principally going to fall on the Navy and the Air Force, the two services that are being called upon to supply an awful lot of the heavy lifting to help relieve this problem.
Quite apart from whether we‘re going to need those forces in a war in the future or not, it‘s a reminder that you‘ve got to maintain these capabilities. It‘s crazy to be gutting them, as we‘re doing in the middle of a global war on terror.
MATTHEWS: Are we shifting necessary resources away from the front in Iraq?
GAFFNEY: We‘re shifting resources I think away from the war on terror.
Now, some of those are going into place where, frankly, we do need to make a greater effort, Indonesia being a prime example, because it is a front in the war on terror. But our resources are limited. Let‘s face it. And this is one of the reasons why I keep coming on this show and saying remember, when you gutted the military back in the ‘90s, you left us with what Don Rumsfeld calls the army we have. We‘re in the process of making similar cuts that are going to bind our hands in the future, militarily and perhaps in these humanitarian areas as well.
MATTHEWS: Do you think the American people would accept a tax increase to pay for this new American role in the world of fighting terrorism? They haven‘t been asked to yet.
GAFFNEY: The American people haven‘t been asked, frankly, to do much for the war effort. I‘m convinced there is a considerable desire, pent-up desire to do more, if they‘re asked.
But it does require the president to say, you know, this job, we might not want it, but we have it. This job of being the leading force in the world does have costs, especially when there are people who are trying to knock us down. I think the American people would be willing to pay.
MATTHEWS: How come you‘re one of the few voices on the hawkish side, on the conservative side of this fight, the war fight—you‘ve been supporting the war from the beginning—who says we have to pay for it?
GAFFNEY: I think most people recognize we have to pay for it.
GAFFNEY: The question is...
MATTHEWS: I have people of your—of your persuasion on every night here practically. And I listen to you. And the world hears you. And I never hear anybody say, you know, this war is costing us X money, $300 billion a year. If we don‘t pay for it now, we‘re going to borrow it now at current interest rates from the Chinese, basically, who we‘re borrowing it from, and the Japanese. That‘s not good U.S. security policy.
My point is, a lot of people are saying, we can pay for it within the existing Defense Department resources, or, actually, we can reduce the Defense Department‘s resources, just shift them around.
MATTHEWS: Can‘t do that.
GAFFNEY: You can‘t do that.
We‘re really impinging upon our war fighting capabilities for the future. And we‘re going to need those in the future.
MATTHEWS: OK, specific question. Yesterday, we had a couple of generals on. General Downing and General McCaffrey, I believe they both agreed that this was putting a stretch on our airlift capability. Do you believe that?
GAFFNEY: Yes. Airlift—airlift and sea lift.
MATTHEWS: Going to Southeast Asia at the same time we‘re over in Iraq.
GAFFNEY: And that‘s why I‘m particularly concerned about budget cuts in the Defense Department that are going to come principally out of shipbuilding and out of the Air Force. Those are not services that we can afford to cut back, even as we‘re trying to build up the Army.
MATTHEWS: You supported the war in Iraq. You supported the occupation, the attempt to rebuild or build a democracy over there. Right now, let me ask you this. How do we ward off the enemies of this effort in that country if they‘re able to, as they did today, assassinate the mayor of Baghdad?
GAFFNEY: The only thing you can do is continue to invest in building up the Iraqis themselves.
We have to impress upon the Iraqis, the people, as well as prospective military personnel, police personnel, leaders, that they have a chance of winning. The big question, Chris, a lot of these people are sitting there with their finger in the wind. Are they going to be on the wrong side?
GAFFNEY: And, frankly, if we don‘t continue to show them that they‘re on the right side, there isn‘t a chance that this is going to come out right.
MATTHEWS: But the ones we have convinced that are sticking their necks out, that are placing their bets on the U.S. effort to bring democracy to that part of the world, they‘re the ones getting assassinated.
GAFFNEY: A lot of them are. And we have got to do a better job of protecting them. That‘s for sure.
But the larger point is, the best way to protect them is to have the help of the Iraqi people. We can‘t be everywhere that people...
GAFFNEY: ... who are hiding in civil populations can come from.
MATTHEWS: This is a tough question. The majority wins the election over there. The Shia win. The clerics have their say on a lot of issues, social issues, women‘s issues and things like that. Should American fighting men and women be over there supporting a Shia government that imposes a kind of Muslim or Islamic rule over that country?
GAFFNEY: Look, if we get a theocracy out of these elections, we‘re not going to be there. But I don‘t think it‘s going to be because we don‘t want to be there. It‘s going to be because we‘re going told to get out.
I don‘t think that‘s what coming, Chris. The good news is, as we‘ve talked about before, is...
GAFFNEY: I think that the Sistanis of Iraq don‘t want to follow Iran down a rat hole.
MATTHEWS: The chief cleric.
MATTHEWS: Even though he speaks with an Islamic—an Iranian accent, he was born there...
GAFFNEY: He knows what a mess the mullahs have made across the border. He believes in the separation of the clergy.
MATTHEWS: You‘re an optimist. You‘re an optimist.
GAFFNEY: Separation of the clergy from the state.
MATTHEWS: They‘re going to be a secular government.
GAFFNEY: That‘s the best case. I think it‘s a reasonable...
MATTHEWS: We have a nomination for attorney general, Alberto Gonzales, who did approve and review and accept the guidelines for torture of prisoners in this whole war on terror. Do you think he should be attorney general?
GAFFNEY: I do. Over 20 years ago...
MATTHEWS: Do you believe in the Geneva Conventions?
GAFFNEY: Over 20 years ago, Ronald Reagan said the Geneva Conventions will not protect people who hide among civilians in order to kill them and other combatants.
That was a very important principle. It was a principle that I believe has been endorsed, if you can believe it, by “The Washington Post” and “The New York Times” at the time. The Senate of the United States made it very clear in 1949, as did the larger Congress, that there‘s a distinction between torture and other techniques that are not covered by the Geneva Convention, as we‘re applying it.
MATTHEWS: This is very important, so people know what we‘re talking about here.
The document that came out from August of 2002 from the Justice Department said, you couldn‘t engage in severe pain or permanent injury to a person, but you could engage in cruel, inhuman and degrading treatment. You say that‘s OK?
GAFFNEY: That‘s a distinction the Senate of the United States made in its consideration of the U.N. convention against torture. That is a distinction that I think is important, especially when we‘re fighting a war against people who don‘t obey any rules.
MATTHEWS: Did Abu Ghraib offend you?
GAFFNEY: Abu Ghraib, the abuses clearly offended me. Similar actions...
MATTHEWS: They‘re within the guidelines here of cruel, inhuman and degrading treatment.
GAFFNEY: The difference is, Chris, if you‘re putting people in a stress position, if you‘re putting people in isolation, if you‘re putting people in a circumstance in which they‘re uncomfortable for a period of time, I don‘t believe that‘s torture.
GAFFNEY: It may be an essential part of what we need to do to get information from them.
MATTHEWS: But this permits cruel, inhuman and degrading...
GAFFNEY: Putting them on pyramids in naked....
MATTHEWS: That is the definition of cruel, inhuman and degrading, isn‘t it?
GAFFNEY: For some people, it is. For some people, simply perpetrating outrages upon the person of—illegal combatant is considered torture.
GAFFNEY: That‘s not my view. And I don‘t think it‘s the view of the Congress.
MATTHEWS: Where are you on water-boarding? Where are you on water-boarding?
GAFFNEY: I‘m not going to go down the litany of things that I‘m in favor and things that I‘m against.
MATTHEWS: No, because it‘s a particular question that is going to come up in the hearings next week—this week.
GAFFNEY: Then we‘ll let the guy who has got to answer them answer them.
But, from my point of view, having the ability to make people uncomfortable in order to extract information from them they don‘t want to give us, but that may save lives, is critical. But the more important point here is—we have heard it from some of your generals.
GAFFNEY: They clearly don‘t want the United States military hurt by these interpretations. Neither do I.
MATTHEWS: Because they don‘t want our soldiers treated that way. And they are being treated that way, unfortunately.
GAFFNEY: There‘s a larger purpose served here. The Geneva Convention was designed to protect civilians who can‘t protect themselves.
If we give the same rights that military combatants have, legal combatants have, to terrorists, it‘s open season on civilians, because you‘ll never be able to tell which is which. That‘s something Ronald Reagan said we‘re not going to do. It‘s something the Senate and the Congress has I believe accepted. It‘s something that Gonzales reiterated. It‘s something President Bush agreed with. And so do I.
MATTHEWS: OK, thank you very much, Frank Gaffney.
GAFFNEY: Thank you.
MATTHEWS: Will U.S. aid to tsunami-ravaged countries help American relations with the rest of the world? We‘re going to visit that question on Tony Blankley and Katrina Vanden Heuvel when we come back.
You‘re watching HARDBALL on MSNBC.
MATTHEWS: Welcome back to HARDBALL.
Tony Blankley is editorial page editor of “The Washington Times” and Katrina Vanden Heuvel is editor of “The Nation” magazine.
Today in “The Washington Post,” associate editor David Ignatius
praised America‘s response to the crisis in South Asia and added—quote -
· “We talk often these days about an exit strategy from Iraq. But the truth is that we need a better entry strategy into the lives and welfare of people around the globe. The way out of our current predicament, paradoxically, is to become more connected with the world, not less.”
Your thoughts and feelings on that point, Katrina?
KATRINA VANDEN HEUVEL, EDITOR, “THE NATION”: I think this human catastrophe has made us see, Chris, how distorted our priorities have been in this country.
We need an exit strategy from this hyper-militarized approach to the world and an engagement strategy toward a global development agenda. And that‘s not soft-headed stuff, Chris. If you look at recent Pentagon and CIA reports, they understand that a global development agenda to deal with the threats of disease, global inequality, global climate change, these are serious strategic issues that make the world more unstable.
MATTHEWS: But isn‘t that saying a parent or a mother or a father has to decide between either feeding the kids or putting a lock on the door at night?
VANDEN HEUVEL: No. Why?MATTHEWS: Don‘t you have to do both?
VANDEN HEUVEL: Well, but—but we—we—the priorities are crazy. First of all, just in terms of Iraq, we‘re spending $200 billion on the occupation of a country, when a portion of that would go towards the eradication of far more systemic problems.
VANDEN HEUVEL: And we spend—the world spends $956 billion on weapons, Chris. These are Cold War weapons systems. Talk about priorities. We don‘t need half of those weapon systems. What we need is help for some of our service men and women.
MATTHEWS: OK. OK.
Tony, we‘ve had generals on the show last night who particularly said, a couple of them, Downing and McCaffrey, that we‘re facing a stretch now, that we‘re really choosing to some extent where to put our resources, that there‘s only so many and giving money to the victims in South Asia is money that should have been spent on the war, perhaps.
TONY BLANKLEY, EDITORIAL PAGE EDITOR, “THE WASHINGTON TIMES”: I want to make a more general point. After the 1755 earthquake in Lisbon, Voltaire wrote about—used it as an opportunity to attack Christianity. We‘re seeing today...
MATTHEWS: On what grounds?
BLANKLEY: On the grounds—on the grounds that God would be malicious to do such a thing. The people in Lisbon are no more sinful than people in Paris. He said, why are they dying in Lisbon and dancing in Paris?
But the point is that he was criticizing Christianity before the earthquake. He was criticizing Christianity after the earthquake. What we‘ve got now is everybody trotting out their own positions which they held before this tragedy and using it to try to make the points that they‘ve been making for years.
So we‘ll hear the people who are against the war make their argument.
The people who want more foreign aid are making their argument.
MATTHEWS: What‘s your argument?
BLANKLEY: My argument is that I think that we‘re probably doing about as much as we should, given all the responsibilities we have regarding foreign aid around the world. We should probably use the strategy of that the president announced of giving aid generally to countries that will adopt policies that are more likely to be productive, rather than to central planning.
And, obviously, in emergencies like this, we do what we do best, which is to bring in the fleet, to bring in the helicopters.
BLANKLEY: And to save lives. But we shouldn‘t get into rebuilding the entire coast of Asia just because we‘re going to be mau-maued by compassion warriors.
MATTHEWS: We have to come back. We‘ll come back with the mau-mauing question with Tony Blankley and Katrina Vanden Heuvel.
And still ahead, how tough will the confirmation hearings for attorney general Alberto Gonzales—the nominee, rather—get? C. Boyden Gray and Ralph Neas will join us to fight that one out.
You‘re watching HARDBALL on MSNBC.
MATTHEWS: Welcome back to HARDBALL. We‘re back with Tony Blankley of “The Washington Times” and Katrina Vanden Heuvel of “The Nation.”
Tony was just telling me that, during the tsunami in South Asia, that the elephants seemed instinctively to know to get out of the way.
BLANKLEY: Yes. Apparently, according to Reuters and various wire services, they‘re not finding any bodies of dead animals, elephants, antelopes. They all had that sixth sense and went for the high ground. And poor humans, we saw the ocean going out and we ran to take a look. And then we got it.
MATTHEWS: We should have watched the elephants.
Let me ask you about a tough question regarding the elephants. The elephants have a candidate for attorney general. His name is Alberto Gonzales. He‘s going to have hearings this Thursday. Is he going to have to pay for Abu Ghraib, Tony?
BLANKLEY: Well, he‘s going to have to pay by being kind of beaten up. I don‘t have any sense that he‘s going to come up short of 60 votes in the final—the final up-or-down vote. I don‘t think they‘re going to filibuster it.
And—but they‘ll try to make the point. He was giving constitutional legal advice. The question is, what policies should we have within the constitutional limitations? Nobody has questioned the constitutional validity of his analysis. All they‘re saying is that we think different policies should apply within what the Constitution permits.
MATTHEWS: But don‘t lawyers have the responsibility to tell their clients what is good for them, not just what may be legal? In other words, was it smart of him to tell the president, basically, torture is OK as long as you don‘t severely damage somebody; you really have unlimited powers?
BLANKLEY: He never said that. He never said that. But lawyers are hired to give legal advice, not to give policy advice.
VANDEN HEUVEL: Tony Blankley, Tony Blankley, Tony, you‘re basically an apologist for torture.
BLANKLEY: No, I‘m not.
VANDEN HEUVEL: This is a man who opened the legal door to Abu Ghraib, to abusive interrogations.
BLANKLEY: Nobody is an apologist for torture, Katrina.
VANDEN HEUVEL: Well, Antonio Gonzales (sic) is.
BLANKLEY: But you‘re sort of torturing me with your analysis.
VANDEN HEUVEL: But you know what interests me, is that you see an unprecedented dynamic here of opposition, not from the traditional civil liberties groups, but from the retired military officers. Doesn‘t that say something?
BLANKLEY: No. It says...
VANDEN HEUVEL: About how a radical departure Antonio Gonzales (sic) and this administration has come from America as a leader in the rule of law in the world?
VANDEN HEUVEL: It seems to me that not only is torture immoral, Tony, but, strategically, these military lawyers are telling us that the Geneva Convention is going to hurt the undermining of the Geneva Convention. It‘s going to hurt our men and women.
BLANKLEY: You don‘t need to lecture me on the morality of torture, my dear.
It‘s not underlying the Geneva Convention, the advice that Gonzales gave. The point is, the people who are not qualified as soldiers—that is, they‘re not wearing uniforms—they‘re not fighting under a flag—are not covered by the Geneva Convention. They are covered by what Gonzales said, by general standards of humaneness, but not the Geneva Convention.
And if you think that when our people are going to be taken by these terrorists, that the terrorists are going to follow the Geneva Convention, I think you‘ve been reading your magazine too much.
VANDEN HEUVEL: There—I‘m going ignore that, Tony, but there is a presumption that the president has the right to appoint his own attorney general.
What‘s striking here is that you have a man who may be America‘s attorney general who has a fundamental disrespect for the rule of law, for treaties this country has abided by for decades, and who sees executive power as overtaking judicial checks and balances. All of his rulings have suggested that the president might as well be King George in his understanding of the law.
MATTHEWS: Well, that‘s a question I want to get to. Here‘s a constitutional question. Conservatives are renowned for their ability to reduce the power of government. You believe in limited government as a philosophy.
Is it consistent with that philosophy to have a ruling by the attorney general, the designate, who said back, after 9/11, that the president basically has no limits on his powers in these kinds of situations?
BLANKLEY: Well, I‘m—while I‘m a lawyer, I‘m not a constitutional scholar, so I‘m not going to...
MATTHEWS: But no limits, doesn‘t that sound scary?
BLANKLEY: I know that Abraham Lincoln suspended habeas corpus during the Civil War.
BLANKLEY: I know that FDR interned the Japanese during World War II. Those were actions which were judged to be constitutional at the time. It was not judged to be beyond that, because as Supreme Court Justice Jackson once said, the Constitution is not a suicide pact.
We can do what we have to do to protect ourselves. Now, there are all sorts of policy analyses to decide what we need to do and how we need to do it. But the idea that we have to be—have our hands tied behind our back when people are trying to kill us and end our civilization I think is just nonsense.
VANDEN HEUVEL: Well, I mean...
VANDEN HEUVEL: Well, I want to say that you have a cohort of judges in this country, and many of them Republicans, who have repudiated the rulings of this administration when it comes to their interpretation of executive power as having no limits.
And I think, once again, this country was built as a country built on rule of law, and we‘re seeing that rolled back in so many areas. And Gonzales has been the embodiment of that. And for America to be—we were talking earlier about America‘s need for a reentry strategy through development and human rights.
VANDEN HEUVEL: We‘re reviled in the world for so many reasons. And one of them, the torture that we saw at Abu Ghraib and now learning more and more about the revelations...
MATTHEWS: If Alberto Gonzales‘ name was Albert Smith, would he have a tougher time getting through, Katrina?
VANDEN HEUVEL: I‘m sorry, if his name was...
MATTHEWS: If Alberto Gonzales was Albert Smith, if he weren‘t a man of Latino background, would he be as easily predicted to win this thing? Or is it basically an ethnic thing, where, with 44 percent of the Hispanic vote in this country, Latino vote, going for the president‘s party, that nobody wants to mess with an ethnic group that‘s growing and showing its independence?
VANDEN HEUVEL: I wish that we could judge people on the basis of their policies and on the basis of memos they have OKed which condone torture. I wish we were at that stage.
But this administration has been very crafty in its insidious strategy of putting forth people who have terrible policies...
VANDEN HEUVEL: ... but may have the support of different constituencies.
MATTHEWS: Tony, do you think the ethnic factor here is as strong as it always seems to be in American life?
BLANKLEY: Well, obviously, it‘s a factor, although it didn‘t stop the Democrats in the last Congress from opposing Rodriguez for appointment. But, at some point, I assume the Democrats, as they saw Bush get a higher percentage of the Hispanic vote...
MATTHEWS: Forty-four percent.
BLANKLEY: They probably don‘t want to filibuster the next seven appointments that he makes for highly qualified Hispanics who start out as peasants and ends up as Harvard graduates, that, at some point, the Democrats probably figure this isn‘t good politics.
MATTHEWS: You‘re speaking wryly, of course.
BLANKLEY: Wryly, puckishly.
MATTHEWS: Thank you very much, Tony Blankley, Katrina Vanden Heuvel.
When we return, much more on the looming battle over the nomination of Alberto Gonzales to be the next attorney general. We‘ll be joined by former White House counsel C. Boyden Gray. He was counsel to President Bush Sr. Plus, Ralph Neas of the pressure group People For the American Way.
And don‘t forget, sign up for HARDBALL‘s daily e-mail briefing. Just log on to our Web site, HARDBALL.MSNBC.com.
MATTHEWS: Coming up, the battle over President Bush‘s pick to be next attorney general, Alberto Gonzales.
HARDBALL returns after this.
MATTHEWS: Welcome back to HARDBALL.
A battle is shaping up over the confirmation hearings of Alberto Gonzales to be attorney general. A group of retired military leaders, including former Joint Chiefs Chairman John Shalikashvili, sent a letter to the Senate Judiciary Committee that said: “Mr. Gonzales appears to have played a significant role in shaping U.S. detention and interrogation operations in Afghanistan, Iraq, Guantanamo Bay, and elsewhere. Today, it is clear that these operations have fostered greater animosity toward the United States, undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world”—close quote.
Tomorrow, a coalition of anti-war and human rights group will launch an ad campaign demanding that Gonzales publicly repudiate the use of torture. Should Gonzales‘s legal judgment on the treatment of suspected terrorists and other detainees disqualify him from becoming attorney general?
C. Boyden Gray served as senior White House counsel to the first President Bush. And Ralph Neas is the president of the People for the American Way.
Ralph, a little political point here. I notice they just want him to call on—to say that we shouldn‘t be torturing prisoners. It sounds like the left here has given up on stopping Gonzales. He‘s going to be attorney general.
RALPH NEAS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY: Actually...
MATTHEWS: Why not tell not to—why not say he shouldn‘t be the nominee, rather than say, please sign this oath?
NEAS: Chris, I couldn‘t agree with you more. About five hours ago, People For the American Way came out against confirmation of Alberto Gonzales to be attorney general of United States.
MATTHEWS: So you don‘t want him just to swear off torture. You want him to drop.
NEAS: He has been an apologist for this torture policy.
We did an exhaustive review of his record going back over his public career. And it‘s certainly with respect to the torture memos and his justification of the torture policies in the administration. It‘s also because of the sloppiness and the cavalier approach of the clemency memos when he was counsel to George W. Bush.
MATTHEWS: What‘s his motivation? Is it to just be a team player with a rough-and-ready information that likes forward-leaning, aggressive policies, or does he really believe this stuff?
NEAS: I‘m not sure what he believes. I do firmly believe that this is a person who allows his personal relationship, his association with the president to trump his judgment, his wisdom.
MATTHEWS: So then you‘re answering my question.
NEAS: And his respect for the rule of law. It‘s a very cavalier approach.
If we want to talk about moral values and what‘s affecting this country...
NEAS: ... this is a great example of where the Bush administration has fallen...
MATTHEWS: Boyden, you had a job working with the first President Bush. No such questions arose under your watch. Is it the job of the president‘s counsel to basically support the president‘s own inclinations or to warn him on the law?
C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL: No. He‘s supposed to advise the president about what the law is. And I think, in this case, he‘s done that.
Remember that the Abu Ghraib prison abuses had nothing to do with these memos, basically, because no one quarrels that the Geneva Conventions apply to Iraq. The only question is whether they apply to al Qaeda. And that was never the issue in Iraq.
Having said that, though, I think it is also worth pointing out that the Department of Justice has tweaked their memo. They‘ve narrowed, softened some of the language from that earlier memo. I don‘t know that that earlier memo ever had any practical impact, but that‘s been changed now under Gonzales‘ direction.
MATTHEWS: Well, Frank Gaffney was on this program a few moments ago. And Frank argued—and he‘s a hawk. He‘s for the war and for the treatment of the prisoners as has been conducted.
And he believes that if you‘re not a man in uniform or a woman in uniform, I guess, if you‘re not a real soldier in a unit, that you‘re really not covered by Geneva Conventions.
GRAY: This is correct. That would be an unlawful combatant. That‘s what al Qaeda is. And...
MATTHEWS: What about the insurgents we fight over there, the men who are acting like remnants of the former government over there, who are operating in the streets, fighting man-to-man against our troops? They‘re not undercover. They‘re shooting it out in the streets. Are they soldiers or not?
GRAY: I would argue today—and this is not what was operative during Abu Ghraib prison, where this insurgency didn‘t exist, really. I would argue today these are terrorists. These are not enemy combatants. These are unlawful combatants without uniform who are the equivalent of terrorists.
MATTHEWS: To be an insurgent, don‘t you have to have a legitimate government you‘re insurgent against? Suppose a person in Iraq just doesn‘t want us there and they start shooting us in the street. Is that a terrorist?
GRAY: Well, I don‘t...
MATTHEWS: It‘s their country, isn‘t it?
GRAY: Yes, but I don‘t think these people who are attacking us, a lot of them are getting aid. Some of them are actually coming from outside the country.
MATTHEWS: No, but the ones in the country, the Iraqis that are fighting us, can we simply determine by our definition power to say, well, anybody who opposes us in Iraq is a terrorist?
GRAY: If they‘re in uniform, they deserve protection from the Geneva Convention. If they‘re hiding as an out-of-uniform terrorist, they‘re a terrorist.
MATTHEWS: Let me ask you about the—so, you generally accept his review of the law, in the sense that saying that back in the early 19 --
2002, rather—and when he said that the Geneva Conventions, the strict limitations on questioning of prisoners is no longer relevant.
GRAY: To al Qaeda, to a terrorist, to an unlawful enemy combatant.
MATTHEWS: Well, anyone we‘re fighting is a terrorist, by your definition.
GRAY: No. There are Iraqi uniform military who fought us during the war. They are—they‘re entitled to the Geneva Convention.
MATTHEWS: I see. So, just the people who fought us in the first line of Iraq? When we first went in, that quick attack that we won so quick, that‘s the war in which it would legitimately apply?
GRAY: Exactly. Exactly.
MATTHEWS: But today...
GRAY: But today, I don‘t know. And I don‘t know what you would call some of the people who are...
MATTHEWS: Well, what about this particular question here of the treatment of prisoners and the question of cruelty?
Now, according to this memo that came out on August 1 of 2002, and, of course, this related primarily to Afghanistan at the time. He said that—his department said that you couldn‘t engage in anything that caused severe pain—now, that‘s an interesting question, because some people think a toothache can be severe pain and root canal can be certainly severe pain—or permanent damage. But you are permitted to engage in, by his guidelines, cruel, inhuman and degrading treatment. What a lot of people saw with Abu Ghraib with all those TV pictures was cruel, inhuman and degrading treatment.
GRAY: Well, I don‘t think any of that was authorized. I think...
MATTHEWS: But is it within the purview of his definition of what we‘re allowed to do?
GRAY: The Senate, which defined torture, which is binding on the executive branch, defined torture as something more than inhuman and degrading treatment. There is a difference between inhuman and degrading treatment and torture.
But, that being said, I don‘t think that what happened at Abu Ghraib was ordered by the military or ordered by civilian authorities. And the people who did it will be appropriately punished.
NEAS: This is incredible revisionism of the last couple of years.
Boyden, you certainly could be counsel to this president, too.
MATTHEWS: How so?
NEAS: Donald Rumsfeld—Donald Rumsfeld said that, with respect to Abu Ghraib and with respect to some of these other very unfortunate incidents in the Middle East, that they depended on legal counsel. They depended on the memos coming out of the White House. The Department of Defense...
MATTHEWS: Did Donald Rumsfeld ever defend Abu Ghraib?
NEAS: He defended the policies with respect to torture and the legal advice he got from his Department of Defense, which was based on the White House counsel‘s office policy, almost verbatim.
It was so bad that Colin Powell in the Department of State said, listen, this is overturning more than 100 years of law, international law and national law. And it‘s going to hurt our diplomats. It‘s going to hurt our soldiers. It‘s going to undermine our nation‘s security. This is bad policy.
MATTHEWS: It hurts our soldiers out of fear that our soldiers will be treated as badly by the other side.
MATTHEWS: Although they behead people already. It‘s hard to get any worse in their treatment of us.
GRAY: I know. See, what any—not that this is condoned, but I don‘t see what anything Americans do could generate anything worse than what they‘ve already done, really.
GRAY: I think that‘s...
MATTHEWS: All right. So you think he shouldn‘t be confirmed?
NEAS: We definitely oppose his confirmation.
GRAY: He should be confirmed and he will be confirmed.
NEAS: The conventional wisdom is certainly that he should be confirmed, although you can sense a growing concern regarding him. And I think the questions are going to be tougher. It may go more than one day.
MATTHEWS: Will Ted Kennedy vote for his confirmation?
NEAS: I‘m not sure if he‘s committed himself one way or the other.
MATTHEWS: Will Pat Leahy?
NEAS: Again, I don‘t think anyone has committed.
MATTHEWS: You know all these guys.
NEAS: I think they want to ask him questions. I think this is going to be some tough questions, a much tougher confirmation than people are expecting.
MATTHEWS: Will this be 60-40 or 70-30?
NEAS: Chris, I really have no idea. It depends all on the hearings.
MATTHEWS: It sounds like 70-30.
We‘ll be right with Boyden Gray and Ralph Neas. Let‘s talk about the Supreme Court when we come back.
And don‘t forget to check out Hardblogger, our political blog Web site. Just go to HARDBALL.MSNBC.com.
MATTHEWS: Welcome back to HARDBALL.
We‘re back with C. Boyden Gray and Ralph Neas.
Ralph, you were a counsel to President Bush. You know the Bush family quite well. Are they going to go for the long ball and really put in a really hard-nosed conservative for a court if the Seat opens with the possible retirement of Rehnquist?
GRAY: I don‘t understand what is meant by hard-nosed conservative.
MATTHEWS: Somebody that won‘t get approved.
GRAY: They‘ll put in somebody who—they‘ll nominate—he will nominate, I believe, somebody who is in the range of what he has done so far, which is not out of line with what Republican presidents have done for 25 years.
MATTHEWS: Strict constructionists.
GRAY: There‘s a very important memo, study that Cass Sunstein, professor at Chicago, leading adviser to the Democrats, has said there‘s remarkable consistency between Reagan, Bush 41 and Bush 43 judges. What he will nominate I think will be right in that mainstream. So, when the Democrats filibuster and try to block, it is they who are veering off to the left, not the president who is veering off to the right.
MATTHEWS: Somebody like Sandra Day O‘Connor, do you think that might be the case, Ralph, who the liberals have come to like, and Kennedy, of course. Souter of course is very popular on the left these days. He turned out to be a 180 guy from where the president thought he was when President Bush named him, former President Bush.
NEAS: First, there are only three checks and balances left in our federal system, the filibuster, Sandra Day O‘Connor and Anthony Kennedy.
NEAS: You‘re right. She is viewed as a conservative.
MATTHEWS: Do you think the filibuster is a legitimate tool to use in a confirmation?
MATTHEWS: Doesn‘t that require that a super majority, rather than what the Constitution intended of a 51 vote or a simple majority? Doesn‘t it change the Constitution?
NEAS: No, it doesn‘t. Article 1, Section 5 provides for the Senate and the House to set its own rules. Filibuster has been used since the late 1800s. It‘s been used maybe 30, 40 times in a judicial context.
MATTHEWS: Boyden, do you think the requirement of a super majority, of a 60-vote majority for a judge confirmation changes the Constitution?
GRAY: I think it does. And if the founding fathers had men for the filibuster to be used for judges as opposed to legislation where it has been used since the founding, but for judges, it has never been done before. And if it hasn‘t been done for 200 years, that‘s a very, very strong...
MATTHEWS: You‘re shaking your head. When was it used before for filibuster?
NEAS: Abe Fortas was filibustered in 1968, was defeated. Rehnquist was filibustered in 1972 and 1986. Cloture was not invoked in 1972, but was invoked in 1986. He was confirmed both times. There have been 30 or 40 filibusters.
NEAS: It‘s part of the process.
MATTHEWS: Will you be encouraging the U.S. Senate to employ the filibuster against an unwanted nominee, somebody you don‘t want?
NEAS: If there is someone in the mold of Thomas and Scalia and George W. Bush has promised the right wing, pledged of someone in the mold of Thomas and Scalia...
MATTHEWS: How can you use procedures to prevent a vote on a man like Scalia, who everyone recognizes to be a keen intellect and a good man, when he was unanimously confirmed last time for associate justice? How can you use the filibuster to require a super majority against him and basically prevent a vote on Scalia?
NEAS: Twenty percent of all Supreme Court nominees have been defeated over the 200-plus years.
NEAS: Fortas was also an associate justice who was up for chief justice and was filibustered.
MATTHEWS: You would deny this president a chance for a vote in the Senate on Scalia for chief?
NEAS: He would get a vote, just like Abe Fortas got a vote in 1968.
MATTHEWS: No, a vote on his merits.
NEAS: A vote on the merits. A vote on the filibuster is a vote of the Senate.
MATTHEWS: It is not. It is a vote not to vote.
NEAS: Was Abe Fortas confirmed? No, he wasn‘t. He was defeated by a filibuster.
MATTHEWS: OK. Anyway, you are not going to allow a substitution, a conservative for a conservative without a fight, are you?
NEAS: Listen, I think, by the way, Chris, there may be a bipartisan majority, including five or six or seven Republicans, against a right-wing nominee.
MATTHEWS: We‘ll come back to this when we have a nominee.
Anyway, C. Boyden Gray, sir, thank you for coming back. Ralph Neas, buddy, thank you.
Join us again tomorrow night at 7:00 Eastern for more HARDBALL. Our guests will include radio talk show host Al Franken, who just had gotten back from a USO tour in Iraq, a nonpartisan one, I should say.
Right now, it‘s time for the “COUNTDOWN” with Keith.
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