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'Hardball with Chris Matthews' for Jan. 6

Read the transcript to the 7 p.m. ET show

Guest: Helen Prejean, Marie Cocco, Barbara Comstock, Jeff Sessions, Richard Durbin

CHRIS MATTHEWS, HOST:  Attorney general nominee Alberto Gonzales testified before his Senate confirmation hearing today to answer for his role in the Bush administration‘s policy on torture. 

Let‘s play HARDBALL. 

Good evening.  I‘m Chris Matthews. 

Alberto Gonzales repudiated the use of torture before the Senate Judiciary Committee today, but faced sharp criticism from Senate Judiciary members for his role in defining what constituted torture. 

(BEGIN VIDEO CLIP)

SEN. EDWARD KENNEDY (D), MASSACHUSETTS:  There‘s a certain kind of sense by many of us here that the administration—and you‘re the point person on the administration—has not been forthcoming on the whole issues of torture, which not just were committed at Abu Ghraib, but is happening today. 

(END VIDEO CLIP)

MATTHEWS:  Will today‘s testimony ease the hearts and minds of Americans about our use of torture or add to the controversy? 

Dana Priest was one of the first reporters to cover the Abu Ghraib investigation for “The Washington Post.”  She is also an MSNBC military and intelligence analyst. 

We begin with the reaction from the White House with NBC‘s David Gregory. 

David, is the White House happy that Gonzales missed the bullet today? 

DAVID GREGORY, NBC WHITE HOUSE CORRESPONDENT:  They are happy. 

I spoke to an administration official this afternoon who said they felt he dealt with some tough questions, as you might expect, in excellent fashion, held his ground.  This administration official said, look, we knew going into this that he was going to be a target here for some general venting about administration policy that would be in part about him and in part just about administration policy. 

Nevertheless, this official said the effort to connect the dots fell completely flat and they‘re not worried about this nomination moving forward. 

MATTHEWS:  Is the White House position, David, that the United States engages in torture of prisoners as a matter of policy or practice? 

GREGORY:  Neither, that they don‘t engage in torture and that the president has never advocated torture, that he has always condemned it. 

What the centerpiece of the debate is about was a period of time they claim when they were exploring the legal limits of their interrogation techniques at places—primarily at Guantanamo Bay—at a time when they claim they were getting some pretty bad people off the battlefield who were not in uniform, who were a real threat, and who at the same time might provide information to help the United States ward off a follow-on attack. 

There is a question about whether that interpretation of interrogation techniques, torture, evolved over time and still some real questions about Gonzales‘ role in al of that.  But the fallback is, whatever that was, whatever the exploration was about, the bottom line hasn‘t changed, which is that he doesn‘t advocate torture, never has, nor has the president.

MATTHEWS:  Stick with us, David.  I want to get some information about you and your reporting about Social Security, because a lot of our listeners and watchers want to know what‘s coming on Social Security.  And you know right now. 

Let me go to Dana to keep this thing going. 

Dana, did the Senate Democrats, like Ted Kennedy, who we just heard from, did they connect Gonzales with Abu Ghraib in any way? 

DANA PRIEST, “THE WASHINGTON POST”:  Well, you know, I think that they did, without the—it wasn‘t a straight black line connection. 

But how can you sit is in the White House preparing a memo that says how far can you go in interrogation techniques, come up with an answer that is so unconventional that you have to pull it back when it is discovered, and then we have the Abu Ghraib photos and we have allegations elsewhere that detainees, from the FBI, by the way...

MATTHEWS:  Right. 

PRIEST:  That detainees in Guantanamo Bay were severely treated in a way that the FBI could not participate in.  And this person was at the center of those decision-making. 

So you don‘t have a black line.  You don‘t have the president calling up or Alberto Gonzales calling up anyone down there, saying do this and that.  That‘s not how the government works. 

(CROSSTALK)

MATTHEWS:  Were not the people at Abu Ghraib told to soften up the prisoners for interrogation?  Wasn‘t that given to them as a mission? 

PRIEST:  It was by their local commanders.  And that‘s what they hide behind here. 

The issue also that we‘re dealing with is not just Abu Ghraib.  In fact, it is not even Abu Ghraib.  It is not Iraq.  It is Guantanamo.  It is the CIA detainees that we know very little about.  However, do know that people like Abu Zubaydah, some of the harder-core terrorists, have gone through some of the harsher techniques, water-boarding, which is when you try convince somebody they‘re about to drown by wrapping them in cloth and dunking them in water, or severe light and food deprivation, extreme cold and heat. 

You know, I think this hearing was a little—will go down in history as very strange, in the sense that you had this person of such great prestige up there talking about, does cutting off fingers amount to torture?  And I can‘t recall a time recently when we‘ve been having that kind of discussion at such a high level. 

MATTHEWS:  What did you make of Gonzales‘ forswearing any torture, saying that‘s something he opposes?  What did you make of that today?

PRIEST:  Well, completely predictable.  The question is, what is torture in your mind or in your law and in your practice? 

And, again, as some of the reporting that we‘ve done recently showed, sometimes, the U.S. government doesn‘t do it themselves.  In fact, that‘s probably rare.  They send people into the hands of other countries, like Egypt, which has a well documented history of torturing prisoners, to be tortured.  And that, they say, is legal because they have signed off on it.  Their legal counsels at Alberto Gonzales‘ office and the National Security Council have signed off on it. 

In those cases, they say they ask those countries to abide by human rights standards.  But it is a wink sort of system.  And they know that that is not going to happen and in fact that is why people are being sent to those places. 

MATTHEWS:  Well, is that one way to loosen some lips, is to say your next stop is some dungeon in Cairo? 

PRIEST:  You know, there are always two sides.  And the other side is that these renditions, is what they call them, people who work in counterterrorism say that they have been a very effective means to getting people to talk.  So there is another side to that. 

And the question in this era that we‘re in is, what are the tradeoffs?  How do you balance?  And Lindsey Graham was very eloquent when he said to Gonzales, I thought, the whole world is watching.  So, does the world believe when Alberto Gonzales says we don‘t torture?  Is that enough to convince the Arab countries who are increasingly hostile to the United States that that is in fact true? 

And I think some of the Democratic senators were trying to make that point. 

MATTHEWS:  Thank you, Dana Priest of “The Washington Post.” 

Let‘s go back to David.

You know, you hear two arguments in this national buzz over torture from both sides.  I guess, from the conservative side, the pro-administration side, one argument is the argument you probably saw all day today, which was, we did not do it.  We‘re not guilty.  We didn‘t torture. 

The other argument you hear from all kinds of conservative commentators is, damn it, this is a tough war we‘re in. 

GREGORY:  Right. 

MATTHEWS:  You have got to get this information out of these people or they‘re going to hurt us worse.  What is the president‘s position, that we don‘t torture, or, damn it, it is a tough war out there and we have got to win it? 

GREGORY:  I think it‘s both. 

And that‘s the real question.  It is, on the one hand, no, we don‘t torture, absolutely not.  We‘re never going to cross that line.  But, at the same time, as Dana points out, you have got a White House counsel and a Justice Department that is poking around and testing...

MATTHEWS:  Right. 

GREGORY:  ... the legal limits and doing research at a time when there really is a big challenge, which is, if you have got real bad people in custody, how do you get them to talk, give you information that may be actionable intelligence?  That becomes important.

MATTHEWS:  OK.

(CROSSTALK)

MATTHEWS:  David, I have got to ask you about this Social Security thing. 

GREGORY:  Yes. 

MATTHEWS:  What have you got on the possibility that we‘re going to see big Social Security benefit cuts down the road? 

GREGORY:  Well, the issue today centers on a memo that was leaked by the president‘s adviser on strategic initiatives. 

His name is Peter Wehner.  He is the big thinker around here in conservative circles who works for Karl Rove.  He put out a memo that basically outlined the president‘s thinking.  Sources here say he got overboard a little bit.  He is saying things that may not really reflect what the president is thinking about.

But as to benefit cuts, look at—if we put up quote No. 1 -- some of the things he‘s talking about.  He says here that personal accounts are simply not enough.

MATTHEWS:  Right. 

GREGORY:  That you can‘t solve the Social Security problem with personal retirement accounts alone. 

“If the goal is permanent solvency and sustainability—as we believe it should be, then personal retirement accounts, for all their virtues, are insufficient to that task.  And playing kick the can is simply not the credo of the president.”

Pretty frank language not often coming from this White House, at least publicly.

(CROSSTALK)

MATTHEWS:  In other words, tie future benefits to prices, rather than wages, thereby by reducing them over time. 

GREGORY:  That‘s right. 

And the idea is that it would really substantially reduce benefits for

younger workers as they get set to retire later on down the line.  Also a

point being made about the politics of this.  He‘s trying to shore up, as -

·         the White House is—trying to shore up Republicans who disagree about doing more than just creating personal accounts. 

MATTHEWS:  OK.  Thank you very much, David Gregory.  You‘re the best. 

And also Dana Priest, who just left us.

Coming up, Senate Judiciary members Jeff Sessions and Richard Durbin on today‘s confirmation hearings for attorney general nominee Alberto Gonzales.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, two members of the Senate Judiciary Committee, Jeff Sessions and Richard Durbin, on the Alberto Gonzales confirmation hearings—when HARDBALL returns.

(COMMERCIAL BREAK)

MATTHEWS:  Alberto Gonzales, the president‘s choice for attorney

general, faced the Senate Judiciary Committee today.  The primary focus,

torture.  Gonzales said he‘s against it.  Senator

Jeff Sessions, Republican of Alabama, and Senator Richard Durbin, Democrat of Illinois, both questioned the nominee today. 

Senator Sessions, what did you learn in the hearings today? 

SEN. JEFF SESSIONS ®, ALABAMA:  Well, we learned that Judge Gonzales really has a good demeanor, that he can handle tough questions.  Good lawyers like Senator Durbin and Kennedy and Leahy and others really went over things that concerned them. 

And he had, I believe, an answer based on a law and fact for each of the decisions that he made.  And I think we also learned that a number of the things that he—that have been complained of were memorandum written not by Judge Gonzales, but by the Department of Justice, attorneys over whom he had no supervision. 

MATTHEWS:  Same question to you, Senator Durbin.  What did you learn? 

SEN. DICK DURBIN (D), ILLINOIS:  The positive thing is I think what may have sounded pretty good a couple years ago about redefining torture and creating exceptions to the Geneva Conventions, Judge Gonzales today was trying to distance himself from that thinking. 

And I‘m glad.  That was a terrible approach.  And I hope that it starts to make clear to the world the United States isn‘t going to compromise its position.  We are against torture.  I was glad to hear it.

Secondly, what troubled me was, we have got a lot of so-called renegade night-shift soldiers over at Abu Ghraib who are being blamed for misconduct and it doesn‘t appear that anybody up the chain of command is prepared to accept any responsibility.  I hope we can get a little more information on that. 

MATTHEWS:  Well, let me ask you about, Senator Sessions, the famous August—or infamous August memorandum from the Justice Department.  That laid out a distinction between the kinds of torture we can engage in and the ones we can‘t. 

What‘s allowed is cruelty, humiliation to some extent of prisoners.  Wasn‘t that determination consistent with what we saw at Abu Ghraib?  In other words, the things that were done at Abu Ghraib seemed to me under the rubric of torture and—or cruelty and humiliation.

SESSIONS:  No, I don‘t agree with that at all. 

What happened in Abu Ghraib was not even for intelligence gathering purposes.  They were just abusing those people for sport.  Many of them...

(CROSSTALK)

MATTHEWS:  But were not they told to soften up the—weren‘t they told specifically by the interrogators to soften those prisoners up, get them ready to answer questions, in other words, reduce them as much as possible to people—answer questions? 

SESSIONS:  No, no. 

There was some discussion of preparing the certain prisoners who were to be interrogated for interrogation.  And some refer to that as softening them up, but not abusing them.  But the people that were abused were not being softened up for interrogation.  That was entirely a different thing. 

MATTHEWS:  OK, let me...

(CROSSTALK)

SESSIONS:  And, certainly, Judge Gonzales had nothing to do with that. 

That‘s under the Defense Department. 

MATTHEWS:  What about these FBI reports that prisoners were being humiliated sexually down in Gitmo, that people were having their genitalia played with by these women, interrogated?  What is that about?  Is that consistent with policy and practice or not? 

SESSIONS:  No.  I don‘t think that‘s consistent with policy or practice.

And I hope that there will be discipline if that occurred.  We are prosecuting and putting in jail people who abused in Abu Ghraib.  And they‘re going to go up the line.  And none of those low-ranking officers who were involved in that, none of those people are going to be able to keep quiet and protect higher-ups.  They‘re going to tell on them if they told them to do that.  So I think the whole truth is going to come out at Abu Ghraib, too.

MATTHEWS:  Senator Durbin, does the United States as a matter of practice or policy torture prisoners? 

DURBIN:  It should not. 

And Judge Gonzales when asked directly said no military or no American personnel should be involved in torture.  When I pressed him on the question, he wanted some time to respond.  But, Chris, you‘re getting to the point here.  The point is, when you connect the dots, it is troubling. 

You start with the torture memos, the redefinition of torture under Judge Gonzales‘ leadership, then the Department of Defense, off to the Department of Defense, down to Gitmo, over to Iraq, into Abu Ghraib.  Now, Judge Gonzales says there‘s no connection there.

But it was a flow of events.  I think it created a permissive environment.  What he said today was, we don‘t want that anymore.  It shouldn‘t be part of American policy.  But the fact is that some messages, wrong messages, were sent out from Judge Gonzales‘ office. 

MATTHEWS:  Was Judge Gonzales an adviser to the president on legal matters or simply a man who saw it as an administrative, a ministerial job to go and get that advice from the Justice Department? 

DURBIN:  I think he had a judgmental role here. 

Now, I know Jeff will disagree with me on that, say he was just an attorney passing along memos.  But, at some point, he had a memo in which he declared the Geneva Convention to be obsolete in this war on terrorism.

MATTHEWS:  No.

DURBIN:  That‘s such a dramatic departure from where we‘ve been. 

MATTHEWS:  But didn‘t he—in all fairness, Senator Sessions, isn‘t it true that he simply delineated that, in a case of the Taliban, in the case of al Qaeda, they weren‘t qualified under Geneva rules? 

SESSIONS:  They clearly do not qualify under the Geneva rules.

MATTHEWS:  That January memo is the one I‘m talking about.

SESSIONS:  Right. 

And also, he did point out that some of the provisions are outdated of the Geneva Conventions.  And they surely are.  We‘re dealing with a quite different kind of prisoner than a German or Japanese prisoner.  These are people who, if they get loose in the communities are determined to kill Americans.  And I think just he was pointing out the different environment we‘re in today, Chris. 

MATTHEWS:  OK, let‘s come back with the senators, Senator Sessions and Senator Durbin.

When we come back, I want to talk more about Alberto Gonzales and the role he actually played in our torture policy or opposition to torture policy, whatever it was.

By the way, later on, we‘re going to be hearing from Marie Cocco and Barbara Comstock with more of this debate.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Senator Jeff Sessions, Republican of Alabama, and Senator Richard Durbin, Democrat of Illinois.

Senator Sessions, this debate has gotten a little bit out of hand, because some people say, quite legalistically, that the United States has never had a problem of torturing prisoners, whatever kind of prisoner they are, whether they‘re al Qaeda or they‘re Taliban or they‘re people, Baathists fighting us in the streets of Baghdad. 

Another side of the argument, the more conservative argument, is, well, damn it, these people are our enemy.  They‘re not in uniform.  They‘re throwing bombs at our troops, IEDs.  They‘re blowing up our people. 

To hell with them.  Treat them bad.  Get the information out of them. 

Where do you stand? 

SESSIONS:  I think I stand where the president stands. 

He said that he wants to use all lawful tools that he has.  If they‘re unlawful combatants like the Taliban or al Qaeda, then they‘re not given the general protections of the Geneva Conventions.  But they are protected by a federal U.S. statute that says we do not torture.  And torture is defined as inflicting substantial pain, mental or physical pain, on someone. 

So, there are things that you can do, perhaps, to make it more likely that a person would provide information that could save lives, maybe hundreds of lives, but, at the same time, stay within the law.  And I think that‘s what the president intended.  I think that‘s what we should do.  And I believe that is what Judge Gonzales believes is the right policy. 

MATTHEWS:  What‘s your policy, Senator Durbin, on torture? 

DURBIN:  I want to tell you, I got a letter from Pete Peterson.  You know him, Chris. 

MATTHEWS:  Sure.

DURBIN:  He‘s former ambassador to Vietnam.

And he wrote to me and he said, I spent six and a half years as an American prisoner of war under the hands of the Vietnamese.  He said to me, I wouldn‘t have survived without the Geneva Convention.  And the Vietnamese didn‘t follow it closely, but they knew that America and the world was watching and would hold them accountable after that war. 

So, even though none of us have sympathy for these cruel terrorists who are beheading Americans who are innocent, we cannot lower our standards to such a low level that any soldier captured by the enemy anywhere in the world can say, the United States doesn‘t play by any rules.  Why should we? 

MATTHEWS:  What would you have done...

DURBIN:  So I think the president is right.

MATTHEWS:  Well, let me give you an example close to home. 

We picked up Moussaoui, who many people believe was the 20th hijacker.  We picked him up before 9/11.  If you had been there, the commander on the spot, and you knew that this character knew that something was coming really bad, would you have turned the thumbscrews on him? 

DURBIN:  Hard question, very tough question. 

MATTHEWS:  To stop 9/11. 

DURBIN:  To stop 3,000 people from dying, I‘m not sure what I would have done. 

But I‘ll tell you this.  As a rule, we should play by the rules.  And we have to understand those rules are there to protect American soldiers and American civilians as much as really are to protect the people we have in captivity. 

MATTHEWS:  But when you‘re dealing with religious zealots who are willing to die, how do you torture them?  How do you get the information?  Are you up for—let me ask you a question. 

In the context of torture—and most people are more interested in the torture question because they care about our national conscience.  Even the most conservative, hawkish people worry about that, because it ends up where you are when you‘re—after the war.  Do you think the American people are open to sodium pentathol, to truth serum, as opposed to this kind of punishing type of torture? 

DURBIN:  Well, that‘s part of the whole question of interrogation techniques, is whether you use any kind of drugs or injections involved in the process. 

But remember this, too.  Torture very rarely gives you valuable information.  A person who is being tortured will say almost anything for the torture to stop. 

MATTHEWS:  OK.

DURBIN:  Even John Ashcroft said torture is not a very effective technique. 

MATTHEWS:  Let me to go Senator Sessions. 

The tricky part here, when the United States went into Iraq, we knew we were going to get involved in opposition, resistance, insurgency, nationalism, whatever you want to call it, the remnants of the Baathist regime there of Saddam Hussein.  Don‘t you, in that kind of combat, when you‘re fighting people on the streets who are throwing bombs at you, don‘t you have to crack the insurgency? 

Didn‘t we know the name of the game when we went in and we had to torture people to crack that insurgency? 

SESSIONS:  Well, I don‘t think we knew we would have quite the determined postwar resistance that we‘re seeing, but we could have anticipated it may have occurred. 

And we do need intelligence.  There‘s no doubt about it.  Intelligence saves lives.  If you can identify a cell of terrorists in Iraq, you can save perhaps hundreds of innocent Iraqis‘ lives, as well as Americans‘ lives.  And some pressure within the bounds of law, if it is legal and within the bounds of law, I think it is justified. 

I know Senator Schumer, I know the liberal law professor Alan Dershowitz have both said, in this ticking-time bomb situation, torture could be justified. 

MATTHEWS:  Right. 

SESSIONS:  But we need to be very careful about that.  That is a line we ought not to cross often.  But we don‘t need either to have the president‘s hands tied prospectively by some lawyer or some idea...

MATTHEWS:  OK.

SESSIONS:  ... that forever cuts them off from using what may have to be done in some very rare circumstances. 

MATTHEWS:  OK, thank you very much, Senator Sessions. 

And thank you very much, Senator Durbin.

Coming up, Marie Cocco and Barbara Comstock on how the Bush administration defined torture.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  This half-hour on HARDBALL, attorney general nominee Alberto Gonzales is grilled about Abu Ghraib.  We‘ll talk about today‘s hearing with syndicated columnist Marie Cocco and former Justice Department spokeswoman Barbara Comstock when we come back. 

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

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Barbara Comstock is a former senior official of the Justice Department under John Ashcroft.  And Marie Cocco is a syndicated columnist with the Washington Post Writers Group. 

Ladies, thanks for joining us. 

Today was the first chance to have a real public airing over the administration‘s policy with regard to torture of prisoners in this war against terrorism. 

Barbara, is it your view, based upon today‘s hearings, that torture has been official or unofficial policy of the United States? 

BARBARA COMSTOCK, FORMER JUSTICE DEPARTMENT SPOKESPERSON:  It has never been the policy, because the policy, as the president has clearly said, is, all detainees are to be treated humanely. 

What was going on with the various memos that everyone has been reading about is that the White House and the administration asked for, what does the law say on how we treat illegal enemy combatants, terrorists?  The Geneva Convention have never applied to terrorists.  Back in 1987, President Reagan set that policy.  It has been consistent since then. 

MATTHEWS:  Right. 

COMSTOCK: “The New York Times” and “The Washington Post” at the time editorialized...

MATTHEWS:  Barbara...

(CROSSTALK)

MATTHEWS:  ... first question.  Does the United States torture terrorists when we catch them? 

COMSTOCK:  We never have.  And that is not our policy.  And it‘s never been our policy.

MATTHEWS:  Is that your reading of today‘s hearings?  For the people watching now who are not experts on...

MARIE COCCO, “NEWSDAY”:  Well, it‘s not my reading of the facts that have come to light.  She says...

MATTHEWS:  What is your reading?

COCCO:  My reading is, it may not be our stated policy, but it has certainly become our practice. 

MATTHEWS:  Where?  Guantanamo?

COCCO:  We have had deaths in—we have had deaths in U.S. custody in Afghanistan. 

MATTHEWS:  Right. 

COCCO:  We have had abuse of detainees in Iraq.  We have had clear systematic abuse of detainees in Guantanamo. 

So we can say and Mr. Gonzales can say until he is blue in the face that it is not our policy and it is not the president‘s policy.  But it is certainly the practice.

MATTHEWS:  What is your reaction—what is your reaction, Barbara, to the reports that the FBI agents who went down into Guantanamo witnessed the sort of sexual humiliation, a female guard grabbing somebody‘s genitals and the whole routine?  What is your reaction to that?  You say that doesn‘t happen?  That‘s a bad report?

COMSTOCK:  No.  We say, that‘s not our policy.  When there are violations of it—we have violations in our prisons here every day.  In D.C., around the country....

MATTHEWS:  Right. 

COMSTOCK:  You have violations of prisons of what the rules are supposed to be. 

MATTHEWS:  And those are corrected as they‘re caught.

COMSTOCK:  Those are investigated. 

You look—at Abu Ghraib, Geneva Conventions applied.  That‘s why we have eight investigations that are complete, three ongoing, 40 briefings that Congress has had on that. 

MATTHEWS:  You say there‘s been no torture of prisoners. 

You say there has been.

COMSTOCK:  No, I‘m saying our policy is—let me make very clear, it‘s our policy.  You always have aberrations of what the law is, but... 

MATTHEWS:  Right.  But nothing has been unofficially—nobody has turned the other way and let this go on, I‘m saying.

COMSTOCK:  No.  That has not been the case.

MATTHEWS:  OK.  In other words, you say the policy has been clearly against it in practice, not just in theory. 

COMSTOCK:  The president in February of 2002 very clearly said that we were going to treat all detainees humanely.  That was our policy.

(CROSSTALK)

MATTHEWS:  There‘s a real difference here now. 

You say it has been going on and it‘s been honored in the breach.  The rules against it have been honored in the breach.  It is going on.  We are torturing prisoners and the big shots know about in the line of—chain of command, right?

COCCO:  Not only do they know about it.  But I want to go back. 

Mr. Gonzales has been asked many questions today. 

MATTHEWS:  Right. 

COCCO:  And has been very skillful in sort of not answering them. 

But he himself wrote a memo in—I have it right here—it is a January 2002 memo in which he not only sides with those people in the Justice Department who are arguing basically to suspend the Geneva Conventions, suspend the torture treaties.

MATTHEWS:  Right, with regard to the Taliban and the al Qaeda.

COCCO:  Suspend even our own federal laws against torture. 

MATTHEWS:  In those cases, in those cases.

(CROSSTALK)

COCCO:  And he also says the following, that, “If you suspend these things, Mr. President, it will be very hard for anyone to be prosecuted once you take this authority and suspend all these rules.”

(CROSSTALK)

COCCO:  And he says, and he says, that it is impossible to say who may decide to bring unwarranted charges. 

(CROSSTALK)

COMSTOCK:  ... talking about Abu Ghraib. 

COCCO:  Unwarranted charges. 

So, what is he referring to?  What would be—if you‘re suspending all these rules, he is claiming that any charge brought against you would be unwarranted. 

(CROSSTALK)

COMSTOCK:  That memo that she‘s talking about is a draft memo that was part of the discussion. 

In February 2002, the president clearly set out the policy they were going to treat all detainees humanely.  And then the August 2002 memo is OLC memo that came from the Justice Department.

MATTHEWS:  Why was there—why was there a need for a memo in early 19 -- in 2002...

COMSTOCK:  Because we needed...

MATTHEWS:  ... to tell people they weren‘t governed by the Geneva Conventions?  If there wasn‘t going to be any torture, why did you have to worry about that?

COMSTOCK:  No, because—people need to know what Geneva Conventions involve. 

Privileges involve getting monthly stipends, getting uniforms, musical instruments, scientific instruments.  They can‘t be held solely alone.  They can‘t be questioned extensively.  So we have never in our history treated terrorists under Geneva Convention.  That was the policy Reagan let out in ‘87.  That has been consistent through Bush I, Clinton, and now.

All they were doing is going out and looking at, what is the law?  So, what everyone has been attacking Alberto Gonzales about is that he asked, what are the boundaries?  What is the law?  He looked at what Congress said and then Congress...

(CROSSTALK)

MATTHEWS:  I‘m trying get to the basics here.

If, after the hearings today, you still contend there has been no official allowance of torture. 

COMSTOCK:  No policies. 

MATTHEWS:  No policy or in practice, nor general practice, right?

(CROSSTALK)

COMSTOCK:  No, but there are always going to be aberrations.  That‘s what we‘re investigating.  That‘s what we‘ve consistently gone after and we‘re prosecuting currently in Iraq. 

(CROSSTALK)

COMSTOCK:  Where Geneva Conventions do apply. 

MATTHEWS:  Let me ask you, if there was no policy of torture or no practice of torture, official or whatever, normal practice, then why did somebody seek in August of 2002 a memorandum from the Justice Department which delineated between severe punishment and simply cruelty? 

COMSTOCK:  What that memo...

MATTHEWS:  Why did—what was the purpose of such a memo?

COMSTOCK:  What that memo did, the memo, when you read through it, it extensively discusses what the Senate did when they were with the treaties and all the various definitions.  And they go through and say, this is what the law is.  So, they‘re trying to get the outlines of the football field.

Then the policy was well within those boundaries, even though the people we‘re fighting are throwing bombs into the stadium to kill civilians. 

(CROSSTALK)

MATTHEWS:  You say there‘s been no torture, official or unofficial as a practice, as normal practice, right?

COMSTOCK:  No.  The way you‘re saying it, you‘re implying...

(CROSSTALK)

MATTHEWS:  Answer the question now.  I‘m trying to get a clear answer, so people watching can understand.  Does the United States as a regular practice punish prisoners, torture them? 

COMSTOCK:  No.  And that is not the policy. 

(CROSSTALK)

MATTHEWS:  OK, then, well, why do you need a memorandum delineating what kind of torture is in and what kind of torture is out? 

COMSTOCK:  No.  What the memo did....

MATTHEWS:  I read the memo 50 times.  Stop telling me what it says. 

COCCO:  OK.

MATTHEWS:  I know what it says.

(CROSSTALK)

MATTHEWS:  It says you can‘t have severe punishment, which is consistent with organ breakdown, that you can‘t go that far.

(CROSSTALK)

MATTHEWS:  But you can go as far as cruelty, suffering, and humiliation. 

COMSTOCK:  And that is the memo that Gonzales today said they revised and, at the end of last month, they put out a new memo, because that language was being so misconstrued, because it was about what law has said... 

(CROSSTALK)

MATTHEWS:  Why was there a memorandum written delineating what is in in terms of torture and what is out, if we don‘t torture?  Why did we need such a memorandum? 

COMSTOCK:  They were defining how Congress has defined torture. 

MATTHEWS:  Why? 

COMSTOCK:  They looked at the law.

MATTHEWS:  What was the purpose?

COMSTOCK:  So that they know how Congress has defined this and what we..

MATTHEWS:  Why?  Why would somebody want such a memo if they were not torturing people? 

COMSTOCK:  Because they were looking at what the law says and what Congress... 

MATTHEWS:  Why? 

COMSTOCK:  Because the Justice Department is tasked with looking at how the Congress defines and explains the law. 

MATTHEWS:  Your reading of that memo.  Why did we have a memo that came out in August of 2002...

(CROSSTALK)

MATTHEWS:  ... that said what‘s in out and what‘s out on torture?

COCCO:  They clearly wanted to see how far they could go.  That‘s why you ask for that. 

MATTHEWS:  Who?  Who is they?

(CROSSTALK)

COCCO:  The people in charge of this mass detainment of individuals. 

MATTHEWS:  The CIA, right.

COCCO:  And it is not just the CIA.  There have been Defense Department—Secretary Rumsfeld has been involved in this.  Senator Kennedy...

(CROSSTALK)

COCCO:  Senator Kennedy early in today‘s hearing I thought gave a very interesting explanation of the whole chain of events in all of the departments involved in this.  And the thing that you need to understand...

(CROSSTALK)

COMSTOCK:  ... total misrepresentation of...

(CROSSTALK)

COCCO:  The thing that you need to understand about Mr. Gonzales is as following.  There was a dispute about this within the administration, within the Bush administration. 

The Justice Department and the Pentagon were on one side, saying this is how far we can push this.  The State Department was on the other side.  And, in this dispute, with the State Department warning them, warning the president, warning Mr. Gonzales that, if you do this, it will be trouble.

MATTHEWS:  Right. 

COCCO:  Who did Gonzales side with?  He sided with the people who wanted to push this torture statute and push this definition of torture as far as they could. 

(CROSSTALK)

MATTHEWS:  My sense is that Gonzales argues that he simply sought counsel from the Justice Department.  He is simply moving information around.  He‘s not setting policy.

Let‘s get back.  We‘ll talk about Alberto Gonzales and to what extent he was involved, if any, if he had any role at all in supporting U.S.  torture policy or in fact if there was a torture policy, because Barbara Comstock says there was not.

More with Marie Cocco and Barbara Comstock in just a moment.

Plus, Sister Helen Prejean on her new book, “The Death of Innocents.”

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

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, more with Marie Cocco and Barbara Comstock when we come back.  And later, Sister Helen Prejean on what it‘s like to witness the execution of somebody you believe is wrongly convicted—when HARDBALL returns.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Marie Cocco and Barbara Comstock. 

Why is Alberto Gonzales involved in this whole matter with regard to torture of prisoners?  He‘s attorney general.  How did he get this job of deicing what is in and what is out with regard to torture? 

COMSTOCK:  Well, I disagree with the premise of what is involved here. 

(CROSSTALK)

MATTHEWS:  Explain this.

COMSTOCK:  What was involved here was, you had enemies who want to kill civilians.  How do we deal with them? 

The first thing they were establishing is they don‘t come under Geneva privileges.  And that has been established policy for 20 years.  And then we look at what Congress allows and how to deal with them.  He is involved with this because the administration wanted to look at how we can most aggressively go after the war on terror. 

And when we capture people like Khalid Shaikh Mohammed, the mastermind of 9/11, when we captured him, we didn‘t—we wanted to be able to talk to him and find out intelligence about other cities that he might be targeting, things that he wanted to do.

MATTHEWS:  Well, how did we treat him differently?

COMSTOCK:  And if we had treated him as a POW, we could not have done any of that questioning. 

MATTHEWS:  So how are we treating him differently?

COMSTOCK:  I don‘t know.  That is confidential, as it should be. 

(CROSSTALK)

COMSTOCK:  I never learned anything about that. 

MATTHEWS:  You said a moment ago there‘s no torture of these people. 

COMSTOCK:  That is our policy, to treat all detainees humanely. 

MATTHEWS:  So why is it important to have a differential with regard to people described as terrorists? 

COMSTOCK:  Because the Geneva Conventions require things beyond humane treatment, like monthly pay, uniforms to be able to interact with all the other al Qaeda, so they can all get together and say, hey, don‘t tell them about Los Angeles, don‘t tell them about the bomb plot in Chicago. 

MATTHEWS:  I understand that.

(CROSSTALK)

MATTHEWS:  Why did the attorney general candidate today say that the Geneva Conventions do apply to the fighting in Iraq? 

COMSTOCK:  Because they do and they always have. 

MATTHEWS:  So the people we‘re fighting in Iraq are not terrorists? 

COMSTOCK:  When we went into Iraq, we were met with soldiers, people who opened up their arms.

(CROSSTALK)

MATTHEWS:  No, right now, though.  The people we‘re fighting right now, are they terrorists or are they soldiers or are they insurgents? 

COMSTOCK:  Well, the people who...

(CROSSTALK)

MATTHEWS:  He said today that they‘re covered.

COMSTOCK:  We‘ve gone under Geneva Conventions then.

Now, you do have a situation where people aren‘t wearing uniforms.  They‘re going to be insurgents.  And that is a problem.  But we have—because Iraq is a signer of Geneva Conventions...

MATTHEWS:  I‘m just...

(CROSSTALK)

COMSTOCK:  Bin Laden has not signed those conventions.

MATTHEWS:  We‘ve watched the fighting in Fallujah.  Maybe you can help here, Maria.

(CROSSTALK)

MATTHEWS:  We watched the fighting in Fallujah.  We watched our G.I.s getting killed.  We see the other side getting slaughtered.  Fair enough.

(CROSSTALK)

MATTHEWS:  When we capture their people, are they covered by the Geneva Convention who we‘re fighting in the streets like this block to block? 

COMSTOCK:  We are complying with Geneva Conventions for Iraqi soldiers. 

MATTHEWS:  So they‘re treated as combatants.

COMSTOCK:  Well, for the Iraqi soldiers.  I don‘t know if there is a different situation when...

MATTHEWS:  Well, that‘s what I want to know, because who we‘re fighting—we‘re not fighting guys in uniform.  We‘re fighting guys—we‘re fighting militia or whatever the hell you call them. 

(CROSSTALK)

COCCO:  Could I raise this historical point?  Because Barbara has referred to history a couple of times.

During the Vietnam War, this issue of whether we should treat the Viet Cong, who were an indigenous, guerrilla, nonuniformed, insurgent group.

MATTHEWS:  Wearing black...

(CROSSTALK)

MATTHEWS:  Right. 

COCCO:  Integrating themselves in villages, wearing civilian clothes, hiding in rice paddies.  This question came up.

And the United States government decided then that, as a matter of principle, not as a legal requirement, but as a matter of principle, we would apply the Geneva Convention to captured Viet Cong.  Why?  Because our soldiers were at risk of being captured.

(CROSSTALK)

COCCO:  And one of the main reasons we have the Geneva Conventions is so that, when our military personnel and civilian personnel are captured by the enemy, we want them treated humanely. 

(CROSSTALK)

COCCO:  And we want them treated in accord with the Geneva Convention.  And, therefore,, when this very question of an irregular force came up in Vietnam, we said we‘re going to do the right thing, which is Geneva Conventions.

(CROSSTALK)

COMSTOCK:  And that‘s we‘re doing in Iraq even though they behead us. 

They behead our guys and we‘re doing that.

(CROSSTALK)

MATTHEWS:  All the arguments are on your side.  You‘re right on everything.  And I mean that, in terms of that.  I‘m just trying to get the facts on one thing. 

Alberto Gonzales says he is against torture today under oath in the Senate Judiciary Committee, his confirmation hearings.  We also have memorandum that he had a role in—we‘re not quite clear what the role is in terms of the August memo of 2002 -- where he clearly delineates what is in and what is acceptable in terms of treatment of prisoners, like cruelty, humiliation, that sort of thing. 

Do you consider those categories of things which his—that memorandum from the Justice Department...

COMSTOCK:  It‘s the August 2002 memo, right.

MATTHEWS:  Do you think that those lists of things that are acceptable, do you call that torture?  Are those things your idea of torture? 

(CROSSTALK)

COMSTOCK:  I—that memo is not in effect anymore. 

The memo that‘s in effect is the December memo, where they‘ve taken out some of that language, because people have misconstrued that as being our policy, when all that was, was looking at what the Senate had defined as the law.  And that was a legal interpretation of what the Senate said. 

(CROSSTALK)

MATTHEWS:  Is it your belief, watching the testimony today, that Alberto Gonzales was a hard-liner in terms of trying to get information out of prisoners?  The phrase used often was forward leaning.  He kept pushing for, can we be more forward leaning, which is obviously a Rumsfeld phrase, a Justice Department phrase. 

But in this context of getting information out of prisoners, his apparent approach to whole thing was, let‘s be forward leaning.  Let‘s see what we can get out of these prisoners.  Is that your understanding of his...

(CROSSTALK)

COMSTOCK:  Everybody in the administration after 9/11, when you capture someone like a Khalid Shaikh Mohammed, you want to get the maximum information we can legally and humanely do.  And that was policy.  And that is a good policy to protect the American people. 

MATTHEWS:  Right.  OK.

(CROSSTALK)

COMSTOCK:  That is what we are doing.

COCCO:  Then why were so many FBI agents so shocked, appalled, blanching at the conduct at Guantanamo, that there is now a flood of memos by FBI agents?

(CROSSTALK)

COCCO:  And let me tell you something.  I have met a lot of FBI agents and none of them are wusses and pansies.  They‘ve seen violence before.  They‘ve seen blood before.  They don‘t blanch at it.  They blanched at what was going on at Guantanamo. 

(CROSSTALK)

COMSTOCK:  Well, now you‘re mixing apples and oranges.

(CROSSTALK)

MATTHEWS:  I think we‘ve learned a lot here. 

(CROSSTALK)

MATTHEWS:  We‘ve learned a lot here.

Your position, Barbara, is that this administration has not formally or informally turned its back or turned its side or ignored cases of torture. 

COMSTOCK:  No.  We‘re investigating them now.  And Geneva Conventions do not apply in Gitmo. 

MATTHEWS:  We‘re learning a lot.  I didn‘t know that.

(CROSSTALK)

MATTHEWS:  I thought torture was part of our interrogation process. 

COMSTOCK:  Not at all.

MATTHEWS:  I know it was to some extent restricted.  But I had no idea that we‘re not allowed to torture people to get information out of them. 

COMSTOCK:  No.  That‘s the legal guy up in Harvard, that‘s his policy, that we should do that.   

MATTHEWS:  Dershowitz says...

(CROSSTALK)

COMSTOCK:  Dershowitz, yes.

(CROSSTALK)

MATTHEWS:  ... clock ticking, you should be able to do that.

COMSTOCK:  Yes,  Yes, but that‘s never been the policy.

MATTHEWS:  OK, great.  I feel much better. 

(LAUGHTER)

MATTHEWS:  Thank you.  I‘m serious.  I hope it‘s true. 

Marie Cocco, thank you.  Barbara Comstock, I really mean it. 

Up next, a firsthand look at what it is like to witness an execution of somebody you think is innocent.  Sister Helen Prejean will be here to talk about that in just a moment.

(COMMERCIAL BREAK)

MATTHEWS:  Sister Helen Prejean is well known for her book “Dead Man Walking,” where she was played by Susan Sarandon in the movies about the death penalty in America. 

She has a new book, “The Death of Innocents,” which covers the cases of two men, both executed for murder she says these two guys did not commit. 

Sister Prejean, thank you very much for joining us. 

What‘s the worst thing about capital punishment? 

SISTER HELEN PREJEAN, AUTHOR, “THE DEATH OF INNOCENTS”:  What it does to the society that practices it, all the people that get involved, the people who have to carry it out, prosecutors or people that get under pressure and go for the death penalty when they shouldn‘t or...

MATTHEWS:  But doesn‘t executing someone guarantee that no one else will ever be killed by that person? 

PREJEAN:  It at least does that.  But the states that practice capital punishment the most have roughly double the homicide rate of states that don‘t. 

MATTHEWS:  Well, you can‘t prove causality, can you? 

PREJEAN:  Well...

MATTHEWS:  There are states who are simply more—the society is a bit more violent than it is in other states. 

I mean, you have countries like England and Belgium and Holland where nobody kills anybody.  And you have got other countries where a lot of people kill each other. 

PREJEAN:  No, right.

But you know what I learned about it?  I learned this in “Dead Man Walking,” even more so in this book.  The selectivity.  There are about 15,000 homicides, murders, a year.  And less than 2 percent of people are selected to die, eight out of every 10 of them in Southern states...

(CROSSTALK)

MATTHEWS:  Anybody rich ever executed? 

PREJEAN:  Never. 

MATTHEWS:  Anybody famous, famous for something besides killing somebody? 

PREJEAN:  I don‘t know.  Well, O.J. Simpson, it sure helped him to be famous. 

(CROSSTALK)

MATTHEWS:  Well, that chicken prosecutor wouldn‘t even call him for capital punishment, because he knew he wouldn‘t have a chance.

PREJEAN:  Yes, really. 

MATTHEWS:  But you‘re saying it is basically about class.  It‘s—I also think sometimes it is about looks.  Some of these guys just look bad.  They‘re tough-looking customers. 

PREJEAN:  Right. 

MATTHEWS:  And the juries just don‘t like them. 

PREJEAN:  Well...

MATTHEWS:  Is the quality of defense is also the problem?  They just don‘t have decent lawyers? 

(CROSSTALK)

PREJEAN:  Chris, that‘s the key structural problem about why we can‘t fix the death penalty; 117 wrongly convicted people have walked off of death row because they got saved by college students. 

But our state like Louisiana, our legislature is never going to put money in there to get a good defense.  You don‘t have a good defense, you dope have adversarial system of truth to get both sides. 

MATTHEWS:  Right. 

PREJEAN:  And that‘s why there are so many wrong decisions.

(CROSSTALK)

MATTHEWS:  Are you saying, in Louisiana, they believe, where there‘s smoke, there‘s fire?  If you‘re a defendant, you‘re probably guilty, so what the hell?

PREJEAN:  Yes, right. 

MATTHEWS:  Is that the attitude?  Is that the attitude? 

PREJEAN:  Yes, absolutely it is. 

And people get political points for being strong about the death penalty, if they‘re prosecuted.  We even have awards in Louisiana.  This is an attaboy behind-the-scenes thing called the Louisiana prick award. 

You get this plaque you hang in your office.  It shows the state bird, the pelican flying with hypodermic needles in its talons.  And that means you got a death penalty.  And they give those awards behind the scenes to each other.  And then they run for judge after they‘ve done... 

(CROSSTALK)

MATTHEWS:  But what about the other end?  What about some liberal ACLU lawyer that gets somebody off on a technicality and they go out and kill somebody else?  How do they feel?  Shouldn‘t they feel responsible for the second murder? 

(CROSSTALK)

MATTHEWS:  Shouldn‘t they?  Let‘s be fair here.

PREJEAN:  Hold on. 

But there‘s more technicality if you‘re talking about constitutional protections that people are supposed to have.  That‘s what this book brings out, the constitutional protection like Dobie Williams, the first story. 

MATTHEWS:  OK.

PREJEAN:  Black man on trial for supposedly killing a white woman, all white jury.  And every court in the land said he had an impartial jury of his peers.  What happened to that?

MATTHEWS:  How did he get stuck with an all-white jury if he‘s an African-American defendant? 

PREJEAN:  Ah, that‘s very good.  You got to read the book on that one and see what happens.

MATTHEWS:  Do you find a racial peace in this, an ethnic piece in this?

PREJEAN:  Big time.

MATTHEWS:  Where black defendants have it tougher?  How so?  What do you find?

PREJEAN:  Big time. 

First of all, in the selectivity we were talking about about the death penalty, overwhelmingly, eight out of 10 people siting on death row from California to wherever is because they kill white people.  When people of color are killed in this country, it barely is a blip on the radar screen.  Very seldom is the death penalty pursued for the death of people of color. 

What does that say to us? 

MATTHEWS:  Do you think Scott Peterson did it? 

PREJEAN:  Oh, geez. 

(CROSSTALK)

PREJEAN:  It‘s circumstantial.  It sure looks like he did. 

MATTHEWS:  You can‘t libel the guy.  Did he do it or didn‘t he do it? 

PREJEAN:  He sure—well, I‘m not God.  I would have to look at the same circumstantial evidence as—the jury thought he did.  It looks like he did.  He probably did.

(CROSSTALK)

MATTHEWS:  How about O.J.?  Did he do it?

PREJEAN:  There‘s more evidence—and his continued pattern of activity since that has been violence against women.  So, I mean, if you want me guessing about these things, I‘ll give you my opinion. 

MATTHEWS:  No, it‘s not.  I‘m just asking, when you watch a case for a year on television and radio, like we all did, you make a judgment.  Everybody made one. 

PREJEAN:  Yes. 

MATTHEWS:  I don‘t know anybody who didn‘t make a judgment about both those cases. 

Anyway, I think they were both guilty, but that‘s my judgment. 

Anyway, Sister, you‘re great.  Susan Sarandon was great playing you. 

I like Susan Sarandon

PREJEAN:  Yes.  She‘s a good friend. 

MATTHEWS:  What is Sean Penn like?  Do you like him? 

PREJEAN:  You know what?  He is doing Huey Long right now in Louisiana.  I like him a lot.  Sean and I spent a whole day together before he did “Dead Man Walking.”  And I got to know him. 

(CROSSTALK)

MATTHEWS:  Yes, they‘re going to do “All the King‘s Men.”

For Sean Penn to match Broderick Crawford, though, that‘s a hell of goal.

Anyway, thank you very much much, Sister Helen Prejean.

PREJEAN:  Thank you. 

MATTHEWS:  And her book.  If you love this subject—and a lot of people are fascinated with this right now, the question of whether we should be executing people, especially people who are not provably guilty and who have real problems mentally, like one of these people mentioned in this case, great book for you, “The Death of Innocents.”

Join us again tomorrow night at 7:00 Eastern for more HARDBALL.

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

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

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