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updated 8/25/2009 10:32:43 AM ET 2009-08-25T14:32:43

Guests: Julia Boorstin, Courtney Hazlett, George Lewis, Pete Williams, Rev. Jesse Jackson, Bob Baer, Tyler Drumheller, Jay Newton-Small, Chris Cillizza, Clarence Page, Susan Milligan

CHRIS MATTHEWS, HOST:  Manslaughter.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews in New York.  Leading off tonight, manslaughter.  The news broke late this afternoon the Los Angeles County coroner has ruled Michael Jackson‘s death a manslaughter.  Jackson‘s death was caused by lethal levels of an anesthetic called propofol.  That‘s according to findings by the Los Angeles chief medical examiner unsealed in court documents in Houston, Texas, just today.  We‘ll have the latest details in just a moment.

Plus, terror report.  Conservatives wanted it kept under wraps, liberals wanted it out.  And tonight, a CIA report on the treatment and mistreatment of prisoners in Iraq and Afghanistan has been released for all to see.  The report reveals that CIA interrogators threatened to kill the children of a September 11 suspect.  In another case, an interrogator allegedly tried to convince a suspect that his mother would be sexually assaulted in front of him.

At the same time, Attorney General Eric Holder has decided to appoint a special prosecutor to look into possible abuses.  This has huge consequences for President Obama, who has wanted to avoid prosecutions and concentrate on his domestic agenda.  We‘ll talk to two former members of the CIA about these late-breaking developments.

Also, two Republican senators said yesterday the absence of Senator Edward Kennedy from the health care debate is preventing a deal from being made.  That‘s big news.

And can you imagine a U.S. congressman responding to an audience member who called himself, quote, “a proud right-wing terrorist” by saying, “Amen, God bless you”?  Now, there‘s a great American.  Well, it happened and we‘ll tell you who said it in the HARDBALL “Sideshow” tonight.

But we begin with the news about Michael Jackson and MSNBC.com‘s Courtney Hazlett.  Courtney, we‘ve been waiting for this report for weeks now.  I‘ve been around the world lately in Africa and places like that.  This is going to be a bombshell.

COURTNEY HAZLETT, MSNBC.COM:  It‘s definitely a bombshell.  We‘ve been waiting for it, we‘ve been talking about it, we‘ve been saying the word “manslaughter” over and over again and how it would likely be applied to this case.  And finally, here it is today, surprising in its timing, of course.  Also surprising, it comes on the heels of this search warrant affidavit becoming unsealed.  It was filed in Texas.  It‘s unsealed, and it has to do with that Texas investigation.

What we learn here is the timeline of events that took place the night that Michael Jackson died.  I thought it was very interesting.  Conrad Murray allegedly, in this affidavit, said that he gave Michael Jackson a number of drugs beginning at 1:30 in the morning—Valium, Ativan, Versed, then Ativan again, then Versed again, and then finally, at 10:40 the morning that he died, propofol diluted with lidocaine.

And from there, he left the room for two minutes, he says, according to this affidavit, and when he came back, Michael Jackson was not breathing anymore.  And that‘s when resuscitation efforts began.  So finally, for the first time—this is a bombshell, as well—we have some sort of chain of events of exactly what happened, what was administered and in what doses.

MATTHEWS:  Well, Courtney, around the world, this isn‘t going to be complicated.  The word‘s going to be out on the streets of every county, every township, every village in the world, somebody killed Michael Jackson.  Somebody killed him.  That‘s the way “manslaughter”...

HAZLETT:  That‘s how it‘s going to be...

MATTHEWS:  ... will be read.

HAZLETT:  ... interpreted.  That is absolutely right.

MATTHEWS:  Is there any other interpretation?

HAZLETT:  In the eyes of the law, it means that he was killed without malice.  That‘s a really important indication here.  It‘s something you have to be very careful about, and especially once we start to say, All right, well, who is being charged?  Remember, all we know is that Los Angeles is saying it is manslaughter.  They‘re not saying who did it.  They‘re not saying it was with malice.

MATTHEWS:  Well, someone will be charged.

HAZLETT:  But you are right, someone will be charged.  And the take-home lesson...

MATTHEWS:  And someone killed Michael Jackson.

HAZLETT:  Someone killed Michael Jackson, but was it intentional? 

That‘s what they‘re going to be trying to uncover, was it intentional.

MATTHEWS:  Well, the world‘s going to interpret this the way it will.  Let me tell you, everywhere in the world, they‘ll have their own interpretation of this.  And I can predict to you right now, people will have their own interpretations.  People will say...

HAZLETT:  Certainly.

MATTHEWS:  ... somebody killed him.

HAZLETT:  Certainly.  And I...

MATTHEWS:  And they wanted to kill him for political reasons.  Someone will find that reason.  You bet.

HAZLETT:  Well, there are definitely people inside the Jackson family who tell me they believe that, you know, Michael Jackson was worked to death.  And we can expect wrongful death suits, not just including doctors, but including business associates and people...

MATTHEWS:  What do we know about Conrad Murray, without incriminating him?  What do we know about him?

HAZLETT:  We know that he is a medical doctor.  We...

MATTHEWS:  Is he a concierge doctor?

HAZLETT:  I think he could be classified as one, yes.  He was bought by Michael Jackson at a monthly fee.

MATTHEWS:  To get prescriptions for him?

HAZLETT:  More or less, yes, to be his on-call 24/7.  Conrad Murray said in this affidavit, allegedly, that he gave Michael Jackson propofol every night for six weeks, and only then did he decide, OK, maybe he has an abuse problem with this drug.  It‘s somewhat confounding.  Again, Conrad Murray...

MATTHEWS:  Propofol puts you into a...

HAZLETT:  A coma, essentially.

MATTHEWS:  It‘s a very strong anesthetic.

HAZLETT:  Yes.

MATTHEWS:  It puts you away, basically, puts you to sleep.

HAZLETT:  It puts you under.  It puts you under.  I mean, Chris, how many times have you heard somebody waking up from surgery and saying, Oh, I feel so rested?  You don‘t—you‘re not really sleeping, you‘re being put under.  You are unconscious.  Also, we know that Dr. Murray describes himself as a cardiologist.  He‘s not a board-certified cardiologist, as well, so that...

MATTHEWS:  Well, he wasn‘t much good at the time of the death.

HAZLETT:  It would appear that he was not.  In here, he says that he did administer CPR to Michael Jackson, and at one point left the room mid-resuscitation.  I found that to be a little bit confounding, as well.

MATTHEWS:  Well, the trial will be interesting.  Courtney Hazlett, thank you for bringing us up to date on this.

Let‘s go right now to—by phone to the Reverend Jesse Jackson of the Rainbow/Push coalition.  Reverend Jackson, what I think the world, and I‘ve been out there and you are around the world all the time, hears “manslaughter,” Michael Jackson, what will they put together here?

REV. JESSE JACKSON, RAINBOW/PUSH COALITION (via telephone):  They will put together all of the theories, conspiracy or irrational (ph) theories, that Michael was killed.  And the question becomes what doctor or doctors participated in that process.  I‘m sure there‘ll be unending lawsuits because the accused will face a court of law and will make the case.  And the question is, how long did this take place?  How many doctors were involved in the process?  But the coroner has concluded that Michael did not die of any self-infliction.

MATTHEWS:  You know Michael Jackson.  You knew him when he was alive.  Did you have a sense that he was in control of his own destiny, that he was making rational decisions and reasonable decisions about his own medical treatment and the kind of stimulation or anesthesia he was accepting?

JACKSON:  I did not know about Michael‘s medical treatment.  I knew him since he was maybe 9 years old.  I spent a lot of time with him the last three or four years, as a matter of fact, as he was preparing to (INAUDIBLE) his business with Sony and get his catalog in place.  I spent time with him as he was preparing, excited, frankly, about going to London to take the next phase of his career.  So we never got into that.  So (INAUDIBLE) as a matter of fact, but never had any idea that he was this deeply involved in any kind of substance abuse.

MATTHEWS:  Let me ask you—you‘re a man of the world, Reverend.  You know how big the world is in terms of this man, the “king of pop.”  He really was—I mean, I was lucky enough to be in Africa a couple weeks ago, right after his death, and I can tell you the local newspapers in countries like Swaziland, the South African press, white and black readership for both—huge stories about his funeral.  I can only expect that tomorrow morning, you‘re going to see headlines like you can‘t believe, that word “manslaughter.”  It‘s going to be powerful.

JACKSON:  Well, I think that there are those who would try to make the case that the doctor was connected to AEG.  They‘ll try to make that case.  There are those who will try to make the case that he‘s worth more dead than alive.  There‘ll be a lot of theories out here.  I would hope that we would arrest some of those theories and let this be handled as calmly as possible in a courtroom, not just a newsroom.  And newsrooms are going to go wild.  This is real news ratings stuff.

MATTHEWS:  Yes.

JACKSON:  And I don‘t know that that helps his family, nor does it help his legacy.

MATTHEWS:  Yes.  Well, Reverend Jackson, thanks for taking our time—getting on the phone so quickly.  Thank you very much, the Reverend Jesse Jackson.

Let‘s turn now to NBC‘s George Lewis in Los Angeles.  What do you have, George, in terms of this notion that we‘re now facing a—what looks to be a coming—not a homicide charge but a manslaughter charge coming here?

GEORGE LEWIS, NBC CORRESPONDENT:  Yes.  The Los Angeles Police Department is telling NBC News that this is, indeed, a homicide at this point, likely a manslaughter case.

Very interesting.  The affidavit that was unsealed today in Houston, Texas, shows some strange conduct on the part of Dr. Murray as Jackson was dying.  Murray told police at the time that he saw Jackson wasn‘t breathing at approximately 11:00 o‘clock in the morning, but then the police pulled Murray‘s cellular telephone records, showing him on the phone with three different callers for about 47 minutes starting at 11:18 until about 12:05 that day.  So there may be some evidence there that Murray wasn‘t paying close attention to Jackson‘s condition.

Propofol is an extremely dangerous anesthetic drug that needs to be administered usually under hospital room conditions, under operating room conditions, and he was doing this at Jackson‘s home.  So if this turns into a manslaughter charge, the charge will probably be that he gave a legal drug but did so in a rather unethical manner and a careless manner that obviously led to Jackson‘s death.  That will probably be the charge if it turns into a manslaughter case, Chris.

MATTHEWS:  George, looking at the document itself that was released in Harris County today, in Houston, because that‘s where Mr. Murray lives and practices, can we—without projecting an inch beyond the document itself, what does it tell us?

LEWIS:  It tells us that there‘s evidence that Dr. Conrad Murray prescribed propofol and a whole medicine chest full of other drugs to Jackson, who complained that he couldn‘t sleep, that at one point, he felt that Jackson was becoming hooked on propofol and tried to wean him off the anesthetic, but that Jackson complained he couldn‘t sleep without it.  So he was trying other drugs, other tranquilizers.  And when Jackson complained that he couldn‘t sleep, then he administered to him the propofol, in addition to the other drugs on the day that Jackson died.

So the question is, was it the propofol or was it a combination of drugs that killed Jackson?  Obviously, now police calling this a homicide.  They think that the actions of Dr. Murray probably led to Jackson‘s death.

MATTHEWS:  Just to get this straight, this is going to be handled in, what, county court, Los Angeles County court?  How will it be handled legally?

LEWIS:  This would likely, as most murder cases are, including the very famous O.J. Simpson case—it would probably go to Los Angeles superior court because this is the county where Jackson‘s death occurred, where the alleged crime occurred.

So Dr. Murray—we‘re not quite sure where he is at this moment.  He has practices in Houston and Las Vegas and also here in Los Angeles.  We‘re also being told by the Los Angeles Police Department that there‘s no arrest imminent.

MATTHEWS:  OK.  Thank you very much, George Lewis for NBC News in Los Angeles.

Coming up, that CIA report just out late today detailing some of the things interrogators did to terror suspects.  Finally, thanks to Freedom of Information and the ACLU, we‘re going to find out right now when we come back what was done to those suspects.  The Justice Department wants an investigation into some of those Bush-era tactics.  We‘ve got a special counsel about to be named.  In fact, he has been named, John Durham.  He‘s been named by Eric Holder, the attorney general.  Let‘s get reaction from two former CIA officers coming up next.

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Today a CIA report on the treatment and mistreatment of prisoners in Iraq and Afghanistan has been released, and it has new details about the kind of tactics used by CIA interrogators out in the field.  Meantime, Attorney General Eric Holder has announced a prosecutor to investigate whether any of these tactics broke the law.

We have two former CIA officers joining us in a minute, but we begin with what‘s in the CIA report itself with NBC justice correspondent Pete Williams.  Pete, what‘s in it?

PETE WILLIAMS, NBC CORRESPONDENT:  Well, it says some new things that we hadn‘t learned before, and it makes very clear that these were techniques that were not authorized by the CIA, that went beyond the scope of what was authorized by the Justice Department.

For example, one detainee was—a hood was placed over his head.  He was naked, and an electric drill was revved behind his head.  The same detainee—there was a gun that was held near his head and the gun was—they call it “racked” to make the sound of the bullet entering the chamber.  Another detainee was in a room, a gun was fired outside, and the detainee was led outside the room and there was a guard lying there to look like a dead detainee, to make the person feel like they were shooting and killing people.

Other detainees were told, We could bring your mother in here, we could bring your family in here.  Khalid Shaikh Mohammed was told that if anything further happened after the 9/11 attacks, quote, “We‘re going to kill your children.”  In another technique, the carotid artery was pressed on a detainee until he was about to pass out, then he was shaken awake.  That was repeated twice more.

So those are the techniques that—among the techniques, we‘re told, Chris, that caused the concern of the attorney general.  He‘s asked John Durham, who is already looking into some CIA matters, to add this to his portfolio, and Durham‘s going to look and see whether these cases could be prosecuted.

Now, that‘s a tall order because you‘ve got a very difficult thing here with these cases.  The CIA‘s inspector general‘s report is looking at things that happened after 9/11 up until October 2003.  So you‘ve got cases that were a long time ago, hard to find witnesses, hard to find evidence, but he‘s going to look into probably about 10 cases in all, we‘re told.

MATTHEWS:  And the president said he doesn‘t really want to do this, didn‘t he?

WILLIAMS:  Well, what he has said is he doesn‘t want to go back—you know, I guess whether the president said he doesn‘t want to do this or not is a good question.  What Robert Gibbs said today is the president doesn‘t want to go back and look at anyone who was following the rules.  These allegations are certainly outside of that boundary.

MATTHEWS:  I see.

WILLIAMS:  And it‘s quite clear, I think now, that this is pretty much the universe of cases that Eric Holder wants a prosecutor to look at.  It‘s quite clear, I think, tonight, Chris, that he is not going to say that a prosecutor should look at Bush administration officials who conceived of this enhanced interrogation program or the Justice Department lawyers who authorized it.

MATTHEWS:  OK.  Thanks, Pete Williams at the Justice Department.

Joining us right now, Bob Baer, former CIA case officer and Time.com‘s intelligence columnist, and Tyler Drumheller, who is also a CIA guy.  He was a CIA European division chief.

Let me start with Bob on this question.  Do any of these allegations surprise you?  Does this seem extraordinary, this technique, clicking a gun with a guy who‘s blindfolded, using a drill in this same way, scaring a guy about what they‘re going to do to his relatives?  Is this really far beyond the orbit of what‘s normally done to get information?

BOB BAER, FORMER CIA CASE OFFICER:  Oh, absolutely.  When I was in CIA and up until 9/11, this was considered beyond the limits, completely, and illegal.  This happened during the Bush administration.  It‘s something entirely new.  It‘s a violation of American law, no question about it.

MATTHEWS:  Let me ask Tyler the same question.  Does this sound well beyond the purview of what‘s normally done to get information?

TYLER DRUMHELLER, FORMER CIA OFFICER:  No, as Bob said, this is completely different from—this is outside the scope of what an intelligence service is supposed to do, what any civilized people are supposed to do.  Intelligence services are supposed to recruit sources and gather information.  This is illegal activity and—but it‘s a policy problem, as well, too.  It isn‘t just these bad individuals.

MATTHEWS:  Right.  Let‘s listen to something that the vice president said in the days just after 9/11 that really gets to it.  He said it on “MEET THE PRESS,” on open society, you might say.  Here‘s what he said.

(BEGIN VIDEO CLIP)

DICK CHENEY, VICE PRESIDENT OF THE UNITED STATES:  We also have to work, though, sort of the dark side, if you will.  We have to spend time in the shadows in the intelligence world.  A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we‘re going to be successful.  That‘s the world these folks operate in, and so it‘s going to be vital for us to use any means at our disposal, basically, to achieve our objective.

(END VIDEO CLIP)

MATTHEWS:  Well, there he is telling Tim Russert “any means at our disposal.”   I must ask you first of all, Bob Baer, I assume the CIA watches “MEET THE PRESS.”  I assume—and I‘m going to ask the same question to Tyler.  And I‘m not kidding here.  These are directions from the top.  Is it fair to say that an operative interrogating somebody might be listening to the vice president when he‘s doing his job or her job?

BAER:  Chris, it wasn‘t just the vice president.  This went right up the chain to the director of operations, to the director himself.  They cannot claim they didn‘t know what was going on.  No CIA officer that I‘ve ever worked with would willingly and gladly do this without directions.  There should be accountability at the top.  No question about it.

MATTHEWS:  Were they getting it right there on television?

BAER:  Yes, and on television.  I mean, it‘s—and they knew they were pressing the law on this or going over the top on this.  There‘s no question about it.  This is not the way the CIA works.  For all these years, since it was founded after World War II, it was—as Tyler said, it was to recruit sources, volunteers, and debrief them and send in reports.  And that‘s what the CIA was about.

This administration, the Bush administration, changed those rules.

MATTHEWS:  Well, is that...

BAER:  ... not the CIA.

MATTHEWS:  ... the way you read it, Tyler, that whatever is necessary?  A statement by the vice president couldn‘t be more clear, whatever is necessary. 

DRUMHELLER:  Well, I think—and the tone that was set right after 9/11, there was an idea that we were about to be attacked again.  Everything had—that was—could be done would be done. 

The when they talk about outside the law and outside the regulations -

Bob knows this, that you get regulations, you get guidelines, but those are very general. 

MATTHEWS:  OK. 

DRUMHELLER:  Even the—even the guidelines in this were very general.  And they‘re open to interpretation.

MATTHEWS:  OK. 

DRUMHELLER:  And it‘s an abrogation of responsibility at the top not to define it for the people at the bottom, who are doing it.

MATTHEWS:  OK. 

DRUMHELLER:  And that‘s what happened.

MATTHEWS:  OK, gentlemen, I‘m a—I‘m a defense attorney for either -

any—anybody picked up under this charge, any operative who is charged with any crime under this for going beyond what was normally the—the standard proper operating procedure for the agency. 

I‘m a defense attorney.  I don‘t have to be a—you know, a brilliant guy.  I don‘t have to be Edward Bennett Williams to say, members of the jury, please watch “Meet the Press” a few days after 9/11.  Please watch what the vice—Tyler, you‘re shaking your head. 

(CROSSTALK)

MATTHEWS:  That‘s what I would do if I was a defense attorney. 

DRUMHELLER:  That‘s right, yes. 

MATTHEWS:  Well, it...

DRUMHELLER:  That‘s—that‘s exactly...

MATTHEWS:  It seems appropriate to me. 

Your thoughts? 

DRUMHELLER:  That‘s exactly the—that‘s exactly the defense they will take. 

And, in fact, the prosecutions, the—if there are any at the end of this, are the least important thing.  What they need to do is make sure that this doesn‘t happen again, the misuse of an intelligence service, and that, in doing that, they don‘t go too far the other way and get to the mistakes the FBI often makes, which is focusing only on criminal prosecutions. 

It‘s a very complicated process, way beyond just prosecuting a few people that—that—that exceeded their—their brief in this. 

MATTHEWS:  Well, Bob, I‘m—I have to tell you, I have no idea what goes on when we try to get top stuff from top people of the bad guys, if you will.  But you guys are pretty insistent here that this goes beyond the limits. 

BAER:  Oh, it absolutely goes belong—beyond the limits.  It‘s torture., the definition of torture conventions, the Geneva Convention, American law.

It is clearly—and the CIA has understood this for years—it went beyond anything past—past practices.  I have no doubt about it.  This is against the law. 

MATTHEWS:  OK.

Thank you very much, Bob Baer.

And, thank you, Tyler Drumheller.  It‘s great having experts on the program. 

Up next:  A U.S. congressman calls a self-described—you will love this—right-wing terrorist a great American.  That‘s his reaction—that profile in courage coming up in the “Sideshow.”  By the way, the “Sideshow” is getting very well-named these days by the behavior by the wing nuts. 

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Back to HARDBALL.  Time for the “Sideshow.” 

First up:  U.S. Congressman Trent Franks of Arizona has upgraded the birther B.S.  This weekend, Mr. Franks informed a public town meeting that he had been considering bridging a lawsuit in the matter.  It‘s not quite clear whom he intended to sue.  The president, I guess. 

Here is the problem with this.  If Barack Obama was not born in the U.S., which a contemporary newspaper announcement of his birth and the standard documentation made available by the state of Hawaii attest, then there‘s nothing to this birther craze. 

If, on the other hand, his parents and grandparents and everyone else at the time, as well as the state bureaucracy of Hawaii, deceitfully confected that birth announcement and the documentation itself, then Barack Obama is not only not the legitimate president; he‘s in this country illegally, because there‘s no evidence he was ever naturalized.

Therefore, Congressman Franks, the correct legal action for you to have taken, if you were serious about this, wasn‘t a lawsuit; it was an arrest warrant and swift deportation.  That‘s if you‘re serious, and not just one of those pandering to the worst impulses of the most angry, frightened people out there. 

Late today, the U.S. congressman‘s press secretary put out the word that the congressman, Mr. Franks—quote—“was considering filing a suit, but had changed his mind.”

Next up:  Here is one from Republican Congressman Wally Herger of California.  At his town hall meeting, some guy yelled out bragging that he was—quote—“a proud right-wing terrorist,” to which the congressman responded: “Amen.  God bless you.  Now, there‘s a great American, a great American”—a guy who thinks it‘s OK in this day and age to call himself a right-wing terrorist. 

This is the dangerous edge on which these people, including some elected officials, are now dancing.  We have been here before.  Words lead to actions.  Words create the national mood.  The mood creates a license.  People take that license and use it. 

I‘m not spelling it out any further, because I don‘t want to. 

Time now for tonight‘s “Big Number.” 

Here it is August, and what percent of the top policy-making jobs in the Obama administration have been filled?  Well, according to a study reported in today‘s “New York Times,” just 43 percent of those jobs, less than half.  A big factor?  The Obama team‘s having a tough job getting its people vetted.  Seven months in, the White House has just 43 percent of its policy team in place.  That‘s tonight‘s “Big Number.” 

Up next:  John McCain says the health care debate has been hurt by Ted Kennedy‘s absence.  And how much do Democrats miss Ted Kennedy‘s leadership?  A whole lot. 

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

JULIA BOORSTIN, CNBC CORRESPONDENT:  I‘m Julia Boorstin with your CNBC “Market Wrap.”

Stocks finishing relatively flat today, failing to extend a four-day rally.  The Dow Jones industrials gained three points.  The S&P 500 is off half-a-point.  And the Nasdaq is down almost three points. 

Investors took a little breather today, after last week‘s hectic buying.  Financials surged, then retreated, as investors started looking ahead to another round of Treasury options. 

Heavy buying of Fannie Mae and Freddie—Freddie Mac shares left some analysts scratching their heads.  Investors appear to be gambling that the government will leave the lenders in their current form long enough for them to earn their way back from recent losses. 

And the North Carolina Bureau of Prisons says a “New York Post” story of Bernie Madoff‘s health is full of inaccuracies.  The bureau says, contrary to speculation, Madoff is not terminally ill and has not been diagnosed with cancer. 

That‘s it from CNBC, first in business worldwide—now back to

HARDBALL. 

MATTHEWS:  Welcome back to HARDBALL. 

Ted Kennedy‘s absence is certainly felt in the fight for health care reform. 

Here is Senator John McCain yesterday on ABC‘s “This Week.” 

(BEGIN VIDEO CLIP, “THIS WEEK WITH GEORGE STEPHANOPOULOS”)

SEN. JOHN MCCAIN ®, ARIZONA:  No person in that institution is indispensable, but Ted Kennedy comes as close to being indispensable as any individual I have ever known in the Senate, because he had a unique way of sitting down with the parties at a table and making the right concessions, which really are the essence of successful negotiations. 

So, it‘s a—it‘s huge that he‘s absent, not only because of my personal affection for him, but because I think that health care reform might be in a very different place today. 

(END VIDEO CLIP)

MATTHEWS:  Well, is Senator McCain right?

“The Chicago Tribune”‘s Clarence Page is a syndicated columnist, and “The Boston Globe”‘s Susan Milligan is one of the authors of “The Last Lion: The Fall and Rise of Ted Kennedy.”

Well, it strikes me, Susan, that talking about health care without Ted Kennedy is like talking about emancipation without Abe Lincoln.  You don‘t have the made signatory there. 

What is the condition of the senator, as you can report it now, for “The Globe” and for us? 

SUSAN MILLIGAN, CONGRESSIONAL REPORTER, “THE BOSTON GLOBE”:  Well, I mean, obviously, it‘s very tough.  He‘s got a very aggressive brain tumor.  We haven‘t seen him outside in quite some time. 

And his family has been very good about keeping him—you know, keeping his day-to-day condition very private.  But, certainly, he—he‘s not been well.  He didn‘t go to his sister Eunice‘s funeral.  And, you know, that was certainly a sign of—of how things are.  And I know that he would want to be in Washington right now trying to work on this health care plan, if he could. 

MATTHEWS:  Is there a calculation—and I know it‘s tough, because everybody loves him up there and around the country.

MILLIGAN:  Yes. 

MATTHEWS:  Most people do, actually.  Do you think that he could make a vote in the Senate if they had to—he had to come down to make a vote? 

MILLIGAN:  You know, honestly, I know that people who don‘t know him think this is a crazy thing to say, but I can entirely envision a scenario where he would somehow manage to get down there, be brought in with some assistance, and cast a vote for health care.  I mean, I know it‘s that important to him.  And I know that, if it was within his power to do that, that he would absolutely do that. 

MATTHEWS:  Let me go to Clarence. 

Clarence, looking at this from—from around the country, the perspective—and you have covered the health care debate—and it‘s begun—certainly, it was going on under Nixon.  It was going on under Carter.  It was going on under with—ever since Ted Kennedy has been a senator. 

His absence, it seems to me you don‘t have a quarterback on the field. 

You have a cheerleader, in the president.  You don‘t have a quarterback.  You don‘t have Daschle.  You don‘t have him.  You know, where would we be without Hubert Humphrey for civil rights back in the ‘60s?  It seems like that‘s where we are with health care. 

CLARENCE PAGE, COLUMNIST, “THE CHICAGO TRIBUNE”:  That is where we are.  There‘s little doubt of it.

I think, if we had had Teddy Kennedy and—and perhaps Tom Daschle over in the House, maybe President Obama would have the legislation that he could really talk about right now, instead of having five or six bills floating around over in Congress. 

You know, you look at Teddy Kennedy‘s history, I think his relationship with Orrin Hatch says as much as anything.  You know, Orrin Hatch came to the Senate with the idea of stopping Teddy Kennedy, as he put it, you know, directly stopping Teddy Kennedy, because he represented so much of the Eastern liberal establish and its push for issues like health care. 

And, before you knew it, Teddy Kennedy was working with Orrin Hatch.  That was just how effective he was at—at—at working together on things that they could agree on, and actually got through COBRA, for example, to help out-of-work people buy health insurance, and WIC, Women, Infants and Children programs. 

Things like that were what Ted Kennedy has been so effective at doing.  And I think, if anybody could get some senators to—to support a public option, he could do it.  Right now, there aren‘t enough votes for a public option in the Senate. 

MATTHEWS:  Susan, I have a bias here.  And I‘m allowed to have a bias.  I believe in national health insurance, but I believe it could be done incrementally.  And I think it should be done workably.  And I‘m not one of those who believes it‘s better to die in a good cause than to succeed. 

I have watched that happen when...

MILLIGAN:  Right. 

MATTHEWS:  ... Ted Kennedy refused to deal with Nixon back when he offered an employer mandate back in ‘74, the failure of him to cut a deal with Carter, the failure of the Clintons to get a deal and Jim Cooper and Dingell and the rest of them, and Pat Moynihan.  They—it‘s easy to fail.

And then you go and give a big war whoop and say, gee whiz, we did the best we could, and blame the other side.  Kennedy, is it true that he would have been better at deal-making than these guys on the field right now? 

MILLIGAN:  Oh, absolutely. 

In fact, the senator and I had a conversation about this several years ago, where he said he did regret not having worked out something with health care with Nixon at the time.  It was pay or play.  They didn‘t want to do.  He wanted a straight-up national health care plan. 

In retrospect, he said they could have got something in place and fixed the details later.  And that‘s certainly a lesson that he brought to, you know, doing a lot of other legislation after that. 

And I think, right now, what—what he would be doing, in—in a way that only he can, and the only—he‘s one of the few people with the authority to do this—is, he would go in and he would say, look, stop fighting about these details.  We have an opportunity to make history. 

This is really probably the third chance in his career that they have this opportunity, the first under Nixon, the second under Clinton.  This is a third chance.  And he said, you have to decide whether you‘re going to stand in the way of history or whether you‘re going to work out these details and get something done. 

He might make some compromises on it, but he wouldn‘t let this thing fall apart.  I‘m absolutely convinced of that.

MATTHEWS:  Clarence—and then back to Susan—here‘s the diamond that has to be cut.  Do they cut a deal right now whereby they push what they can this year and they promise they‘re going to do more later, in other words, something along the outlines of reform preexisting conditions, portability, things like that, cost-cutting, with the commitment they‘re going to move ahead with something—with more universal coverage later?

Or do they try to ram down this public option right down through the Senate with 50 votes this year?  Where do you think they‘re headed right now, in terms of that decision? 

PAGE:  Well, I think they‘re—they‘re—they‘re moving towards some kind of a deal.  Whether or not they are going to get that public option, though, is an important defining issue for Obama, particularly with his base, because there—there‘s a growing sense that, if there‘s no public option, then what‘s the point? 

And Teddy Kennedy certainly learned his lesson early on.  He‘s often said he regrets not going along with what President Nixon wanted on health care, which I think, in some ways is—is more radical, if you will, than what Republicans want to support now, and certainly along those lines.

MATTHEWS:  No, it‘s more radical than the Democrats would hope to get done, ironically. 

(LAUGHTER)

PAGE:  Yes.  You could say that.

MATTHEWS:  Clarence, you and I are the same age.  Nixon had an employer mandate.  Employers had to have health care for their employees. 

(LAUGHTER)

PAGE:  That‘s right. 

MATTHEWS:  That sounds like—well, I hate to use that word socialism that everybody is throwing around.

(LAUGHTER)

MATTHEWS:  But Nixon was so far out on this one. 

Susan...

PAGE:  Yes. 

MATTHEWS:  ... what are you thinking about all this thing now, that, like, he might make it for a vote, basically?

PAGE:  I mean, I—I just wouldn‘t be completely surprised if he did that.  I think, if he‘s able to do something like that, he will. 

And, as for the—some kind of deal, I mean, I think they‘re going to get something done.  I don‘t know what it‘s going to be.  I don‘t think that they‘re just going to let, you know, a handful of senators from a bunch of states that represent less than 3 percent of the population sort of kill health care. 

They will—they will get something done. 

MATTHEWS:  OK. 

MILLIGAN:  It might not be exactly what they wanted, but they‘re definitely suffering for not having the senator there to kind of...

MATTHEWS:  Right. 

MILLIGAN:  ... bust some heads, metaphorically, anyway. 

MATTHEWS:  Well, to quote an old rival of the Kennedys, Adlai Stevenson, and a—a friend of Illinois‘, it‘s better to light a candle than curse the darkness. 

MATTHEWS:  Thank you, Clarence Page.

PAGE:  Well said. 

MATTHEWS:  Thank you, Susan Milligan.  This Thursday, by the way, is the premiere of our documentary here on HARDBALL, on MSNBC, of the Kennedy Brothers, Joseph Kennedy Jr., John Fitzgerald, Robert and Ted Kennedy.  I think it‘s the best thing we‘ve done around here.  I really hope you get to watch it.  It also includes interesting things like Jack Kennedy himself beginning to dictate his memoirs.  It‘s rather poignant to listen to in the year before he died. 

Here is a look at John F. Kennedy, by the way, his incredible 1960 presidential campaign. 

(BEGIN VIDEO CLIP)

JOHN F. KENNEDY, FMR. PRESIDENT OF THE UNITED STATES:  Join us to register this week, to vote, to stand for progress, to move, to move, to go forward. 

MATTHEWS:  For 1960, Jack‘s campaign theme developed a new playbook, one that has become familiar in every presidential campaign since: use the power of television and, most importantly, take the candidate‘s case directly to primary voters, unheard of at the time, and use their toughness, political savvy, and money to win it all. 

It was a campaign like no other.  In 1960, the key battleground was West Virginia, a heavily Protestant state, where Kennedy‘s religion would be put to the test.  As planned, Kennedy‘s team played up their man‘s youth and war record, contrasting Lieutenant Kennedy‘s hero status with Humphrey‘s failure to serve in World War II, a fact that still amuses Kennedy friend Ben Bradley, who served on a destroyer in the Pacific. 

BEN BRADLEY, FRIEND OF FMR. PRES. JOHN F. KENNEDY:  Humphrey wasn‘t in World War II.  He was—what was he, a hospital maid or something like that. 

MATTHEWS:  You guys are unbelievable. 

BRADLEY:  No, but—

MATTHEWS:  This is what I‘m talking about.  You guys kept score on who was in the front. 

BRADLEY:  We knew people‘s war records.  We sure did. 

(END VIDEO CLIP)

MATTHEWS:  There‘s so much in this you‘ve never seen before about how the Kennedys came to power, their whole era in our lives.  Anyway, “The Kennedy Brothers,” it airs this Thursday on MSNBC at 7:00 p.m. Eastern, right here on MSNBC. 

Up next, with Attorney General Eric Holder appointing a special prosecutor to investigate Bush era interrogations by the CIA, is this exactly the kind of distraction President Obama is worried about in the thick of this fight for health care reform?  Well, it‘s happening anyway.  The politics fix is next.  This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back.  We‘re back with the politics fix.  Joining me right now is the “Washington Post‘s” Chris Cillizza and “Time Magazine‘s” Jay Newton-Small.  Thank you both for joining me. 

This is an amazing story.  This president has hoped to set the agenda.  He wanted it to be health care.  He didn‘t want to be going back and nailing interrogators or torturers, whatever you want to call them, as it turns out now.  Well, we got a story on our hands here. 

I want to start with Chris Cillizza.  What do you make of this now?  We have evidence out there, thanks to Freedom of Information success by the ACLU.  We now know what was done to these suspects.  They were—by a lot of definitions, they were tortured. 

CHRIS CILLIZZA, “THE WASHINGTON POST”:  You know, Chris, I think you hit the nail on the head politically in the intro.  This is not something that the Obama administration wants to deal with.  They made clear from the very start they were not interested in looking back.  They wanted to look forward. 

But the evidence here—don‘t forget this is always important—not to mention the fact that the ideological left, part of President Obama‘s base, is very fired up about this.  The evidence has forced their hand in some ways.  It does detract from health care.  It does distract—

MATTHEWS:  How come Eric Holder is prosecuting now because it has come to public light, if he didn‘t when it wasn‘t in public light.  I guess he got his first look at some of these cases too, I guess. 

CILLIZZA:  That would be my guess, not knowing it.  But I think what -

the assessment they made was there was no way that they could not proceed with some kind of investigation.  Now, if you read this, it‘s a relatively circumscribed, narrow focused investigation.  This isn‘t a broad look into interrogation tactics broadly.  It‘s looking at ten or a dozen cases. 

Still, this is not something the Obama administration—in an ideal word, they want to be talking about health care first, health care second, and health care third.  And this distracts, for better or for worse. 

MATTHEWS:  Let me go to Ms. Small.  What do you make of this as a story?  It seems to me that this is going to bring the vice president in front and center, a favorite topic, by the way, on this program, and a favorite topic of mine.  Chris is laughing because he knows it‘s so true.  But if you have a top dog like the vice president going on “Meet the Press” a couple days after 9/11, and basically saying, we‘re going to the dark side, like he‘s announcing he‘s Darth Vader, and saying, we‘re going to do whatever is necessary—it seems to me that any CIA operative with a decent defense attorney can go to any prosecutor, like Mr. Durham, and say, look, I did what the boss said to do. 

JAY NEWTON-SMALL, “TIME MAGAZINE”:  Well, look, I think it‘s important to make the distinction here that this isn‘t actually an investigation.  This is just a preliminary review, which means that they‘re just going to be looking into seeing if there‘s enough evidence in order to actually do an investigation, and some sort of prosecution down the road here.  And everyone that you talk to about this says it‘s really hard.  I mean, this is like the white elephant of investigations.  It‘s incredibly difficult to prosecute these guys on this stuff, because, like you said, there‘s a lot of ample reasons to defend themselves.  There‘s a lot of things—a lot of people they can point to and say this is the policy at the time.  This is the reason—this is what they wanted us to do.

But, you know, not only not only that, who was in the room?  We don‘t even know.  It‘s hard to have witnesses to say who was there, what were they doing?  It‘s literally, you know—oftentimes the detainee‘s word against the interrogator‘s word.  So these cases are very difficult to prosecute.  Just doing a preliminary review is a very, very sort of initial thing.  And I think it‘s—it‘s almost like—and you were just saying it‘s almost like health care. 

MATTHEWS:  Let me make it simple, Jay—I know you‘re a straight reporter.  I‘ll go to Chris on this for opinion.  I‘m going to try to get some opinion.  You know why.  Because if the head of this network said lead with O.J. tonight, I‘d lead with O.J. tonight.  If he said, lead with Michael Jackson, I‘d lead with Michael Jackson.  And I wouldn‘t get in trouble for it because he told me to. 

If the vice president of the United States says, we‘re going to the dark side; we‘re going to do whatever is necessary to get the information.;We‘re going to use all the subterranean routes and methods that are perhaps not pleasant—if he told us to do that and I did it, how can I get prosecuted on this?  Let me go to Cillizza on this.

CILLIZZA:  Your point is why you saw Leon Panetta, the current head of the CIA—it‘s why you see many CIA defenders say, this is not the right course to go down.  This is going to have a chilling effect.  This is going to affect the way in which we can legally obtain information. 

The problem is there‘s a real desire among a significant bloc of this country.  You can—I think what partisan side you come from depends on how big that bloc you think is.  But they want this to be looked at.  They believe there were blatant rules, laws violated. 

MATTHEWS:  Let me ask you this question.  Suppose the vice president found out that somebody had taken somebody who was a top suspect in al Qaeda, and put a hood on their head and put a drill next to their head and turned it on full strength to scare the bejesus out of them.  Do you think the vice president would give us any more than that give us that weird sort of grinning snarl of his.  Do you think he‘d be upset by it and say, oh, don‘t do that again. 

You‘re laughing too, Jay.  Can you imagine the vice president saying, oh, what a terrible thing to do?  You didn‘t do that, did you?  How about they shot somebody in the next room and they scared the hell out of the guy, because they said the gun went off.  That‘s for you next, or I‘m bringing your mother in to raper her next.  Do you think the vice president would say, you guys are getting too rough? 

CILLIZZA:  I and many other political reporters have gone bankrupt trying to predict what Dick Cheney would say or do.  So I‘m not going to get into that mindset.  I do think his presence at the center of this, from just a purely political perspective, adds to what Jay was saying about the difficulty from a legal perspective.  He is such a polarizing figure for so many Americans that him being there, I think, makes it—and him being at the center of this complicates trying to piece this out and figure out what actually happened. 

Dick Cheney, by his very nature, people feel so strongly about him.  They either think think he was absolutely involved in this; he wasn‘t.  One way or another, it‘s hard to get out what actually happened here. 

MATTHEWS:  Jay, we‘ll get back to you on this.  I want to get back to you on Afghanistan, another huge story that could really hurt the president.  We‘ll be right back.  I wonder whether he‘s getting into the same kind of sink hole that LBJ was in with Vietnam.  Jay Newton-Small for “Time Magazine” coming back with Chris Cillizza, WashingtonPost.com.  You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Jay Newton-Small and Chris Cillizza.  This is a powerful story.  I don‘t know whether we can handle it in a couple minutes.  Let‘s take a crack at it.  Jay, it seems to me that Afghanistan is growing for a problem area for this president, for our troops over there, especially, for the country. 

SMALL:  Absolutely.  Look, you‘ve got Senator Russ Feingold today coming out and calling on President Obama to set a timeline for withdrawal of troops in Afghanistan.  That‘s a really big deal.  Russ Feingold sort of spearheaded the efforts to get the troops out of Iraq.  You‘re talking about a lot of the progressive side of the party who are really wondering, you know, when are we getting out of Afghanistan? 

Are we going to be sending more troops into Afghanistan?  That‘s a

scary question.  Are we going to be there a decade, two decades?  That is -

that‘s what brought down LBJ.  That was the quagmire of Vietnam that sort of erased the Vietnam policy. 

MATTHEWS:  And it would have brought down Jack Kennedy maybe.  Chris Cillizza, it seems to me that he backed into this war.  He didn‘t want to fight the Iraq war.  He wanted to fight this.  This was the necessary war.  He said it again last week.  Necessary or not, is this getting worse? 

CILLIZZA:  You know, I think the president is trying to make a calculation, Chris, that is outside of the political spectrum on this.  In some ways, it‘s like health care.  It‘s something he clearly believes in.  You go back to the beginning of the campaign.  He won over a lot of the liberal left with his calls that he was consistent on Iraq from the beginning, essentially saying that this was a dumb war.  He wasn‘t opposed to wars.  He was opposed to dumb wars. 

This is where, on a foreign policy front, he looks like he wants to make his mark.  It is risky politically.  There‘s no question about it.  As Jay pointed out, the left already not thrilled with the president over the whole public option debate.  Does the left want to sign on for a commitment of indeterminate length in another foreign country, where the mission is difficult to define in terms of victory. 

The specter of Iraq, as well as the specter of Vietnam—but I think the specter of Iraq hangs over this.  I do think the president is going to move forward on this.  I do think he believes in his heart of hearts this is the right war at the right time.  But that doesn‘t mean it that it doesn‘t come at a political cost.  It very well may.  That cost may be some alienation or further alienation on the liberal left. 

MATTHEWS:  Let me ask you, Jay, can the president cut a deal with the Taliban elements that are willing to cut off any relationship with the al Qaeda organization?  Can we find a Taliban organization that‘s free of the al Qaeda that attacked us 9/11 and then come home? 

SMALL:  I mean, how do you trust that?  How do you trust that you‘re making a deal with this—I mean, essentially we already consider them a terrorist organization.  These are guys who, you know, in the last two days cut off women‘s index fingers for voting in the elections.  Do you really want to be making any kind of deals with these guys, and would they really honor them? 

That‘s part of the problem in Afghanistan, is that so many of these people are just so—the country is so underdeveloped, and there‘s just no education.  You‘d have to spend so many years just pouring resources in to develop the country to the point where you could really leave it stabilized.  That‘s really what makes for the quagmire there. 

MATTHEWS:  It seems like to me, Chris, that Afghanistan is becoming our northwest territory, like it is to Pakistan.  The ungovernable part of the world we have to continually go in and beat the hell out of it. 

CILLIZZA:  That‘s the problem, Chris.  The idea of an open-ended commitment with an uncertain number of troops, if possible, that is extremely dangerous in light of Iraq. 

MATTHEWS:  Lady and gentleman, thank you both for coming.  Welcome to the show, Jay Newton-Small of “Time.”  Right now it‘s time for “THE ED SHOW” with Ed Schultz. 

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

END   

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