MATTHEWS: Welcome back to HARDBALL. Did former vice president Dick Cheney have the legal authority to keep Congress in the dark about a CIA plot to use commando squads to take out senior al Qaeda operatives, the way Israel did with-their Mossad organization did to track down and kill murderers of the Munich Olympics massacre?

Well, Democratic senator Sheldon Whitehouse of Rhode Island is a member of the Intelligence Committee. Sir, thank you for joining us. It seems like the law is clear here. The president shall direct the CIA to inform Congress of any activities, operations, even those anticipated. Did they break the law in this regard, according to the reports in "The New York Times" and "The Wall Street Journal"?

SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: It appears that they have. I think the National Security Act is pretty straightforward and pretty clear. It does not give rise to any criminal violation. It is just a fact that they‘ve broken the law. But I think it‘s important for us to inquire into it because we want to make sure that the CIA doesn‘t have a sort of hip pocket theory of the law that gives it an exemption from compliance. We want too make sure that the CIA recognizes that if there was a failure, that it was indeed a failure, and there‘s no justification for it, and we can rely on the CIA following the law in the future.

MATTHEWS: Well, the act as amended says, "The president shall ensure that the congressional intelligence committees," on which you serve, "are kept fully and currently informed"-fully and currently informed-"of the intelligence activities of the United States, including any significant anticipated intelligence activities." That would seem fairly clear English for someone of Dick Cheney‘s abilities to comprehend, and therefore, I assume he comprehended that law and chose not to obey it.

WHITEHOUSE: I agree.

MATTHEWS: What are the consequences? What are the consequences?

WHITEHOUSE: There are no real consequences because there‘s no enforcement mechanism for it. And I think he would probably argue that the law is improper insofar as it takes away what they consider to be very, very broad executive powers under the commander-in-chief authority to ignore the laws of the United States and to ignore congressional statutes. I think that that is a wrong legal position. But I think pursuing this and getting an answer to that question for once and for all is important.

MATTHEWS: Well, the reason I raise this is because I‘ve been covering the hearings now for a couple of days and watching a woman up for the Supreme Court, to be an associate Justice, having to explain a comment she made a while back, where she simply took pride in her ethnic background and her gender, to be blunt about it, having to go through this sort of limbo, where she‘s had to bow her head now before your members hour after hour after hour about a remark she made, why we can‘t bring the former vice president in to explain under oath-under oath-why he violated a law which was written in simple English?

WHITEHOUSE: Just as one member of the Intelligence Committee, I think it is very important that either the Intelligence Committee or also the Judiciary Committee, which I also sit on, seek some executive subpoenas and play that process out. We have a scarcity of judicial opinions on what we‘re allowed to subpoena and where the boundaries of executive privilege lie. And very, very aggressive positions were taken by the Bush administration, exceeding really, I think, any reasonable view of executive privilege. And I think it would be a very good thing for to us force that issue, get it resolved in a court and get some solid guideposts that we can rely on in the future.

MATTHEWS: Yes, I just wonder why every time we talk about subpoenaing the former vice president, he gets to come in and sit with George W. Bush, as if they‘re, you know, the Menendez brothers or something, have to be able to be in constant communication when they‘re operating-they‘re speaking under oath.

Anyway, let me ask you about Sotomayor, the nominee for the Supreme Court. Looking at it now, after the first round of questioning by your committee-a a half hour each, and a lot of penetrating questions, but mainly on the four points of her comment about being a Latina woman, being a wise one, and whether that‘s an advantage, her comment about the policy role, which now she says is meaning precedent-setting role of the appellate court, comments about the 2nd Amendment, et cetera, really focused here. What do you think has been accomplished in these hours?

WHITEHOUSE: From the Republican point of view, I think a lot of nothing. From the American public‘s point of view, I think they have had a chance to see a very calm, very intelligent, very capable practitioner who is really at the top of her game and who has handled all of these questions in a very disciplined and thoughtful way, in the way that a cautious judge would, grounding all of her answers in statute and in the Constitution and in the precedent of the Supreme Court, and speaking from a very, very fixed and I would say conservative, really, legal point of view.

And she has avoided opinions. She has avoided expressions of theory.

And, so, the notion that the Republicans are trying to foment, that this...

MATTHEWS: OK.

WHITEHOUSE: ... is a woman whose opinions and theories are going to dictate her judgments, I think, has been belied by her conduct over these many hours.

MATTHEWS: OK.

By the way, Senator, I loved the way you opened up your statement the other day. I thought it was one of the few times I have seen a strong-a strong offensive point of view from the Democratic side on these issues.

Anyway, thank you very much, senator Sheldon Whitehouse of Rhode Island.

Let‘s go now...

WHITEHOUSE: Thank you, sir.

MATTHEWS: ... to Senator Kit Bond of Missouri, who‘s vice chair of the Intelligence Committee.

Senator Bond, you‘re smiling. But let me ask you about this. I don‘t know what you make of this, but the law is pretty clear about the president‘s responsibility to inform Congress of any CIA activities or anticipated activities.

What are the roles of the vice president, who claims to not have any role in the executive branch? I mean, there‘s a man giving orders, apparently, to the CIA, who claims at the same time he‘s not even in the executive branch.

What‘s his status here?

SEN. CHRISTOPHER BOND ®, MISSOURI: Before you go into that, Chris, let‘s go back to some basics about what actually happened.

Number one, I wasn‘t on the committee back in 2001 and 2002. Panetta was not the director. I have gone back and looked at some of the records from that 2001 and 2002 period. And I don‘t believe there‘s any way that the House Democrats or others can say that this was not discussed with the committee.

Furthermore, there-I have asked others if they have gone back and looked at our records. We don‘t need to look at somebody else‘s record. Have they looked at our records? I don‘t see any who are making those charges saying they have gone back and searched the records to see if there was a discussion.

And, I mean-and I read...

MATTHEWS: Well, let me read you-read to you-you read the leading piece in "The New York Times" on Sunday. The Central Intelligence Agency withheld information from Congress about a secret counterterrorism program for eight years, on direct orders from former Vice President Dick Cheney.

Are you challenging that?

BOND: There is no evidence of that. There is no evidence, having looked at the records.

MATTHEWS: So, the report "The New York Times" is wrong, and "The Wall Street Journal" follow-up piece is wrong as well?

BOND: This is-Well, "The Wall Street Journal" did something great. They had a headline that said CIA had a secret plan to capture or kill al Qaeda leaders.

I think most Americans would say, thank heavens they did, because al Qaeda declared war on us.

MATTHEWS: Sure.

BOND: And it was-I think it‘s-everybody has understood that the president has said that we must go out, locate, identify, and either capture or kill leaders of al Qaeda.

But the fact remains, in the things that was leaked by the House Democrats, the-their-having read the-some of the records in the early years, the-I have seen discussions of that. I believe that the-that it is-to say that president-Vice President Cheney said-ordered them not to do it is absolutely without foundation.

MATTHEWS: OK.

BOND: It was-it was within the findings. It was within the law.

Secretary-Director Panetta said it was not illegal, it was not inappropriate.

Now, there‘s a lot...

MATTHEWS: Well, you‘re up against some tough reporting here, Senator, because Mike Isikoff, who is one of the toughest reporters around, in "Newsweek" reports now-yesterday, he came here to do this-"Other officials confirmed to ‘Newsweek‘ that Cheney was involved in discussions about the program and had pressed the CIA not to inform Congress about it."

What do you make of that...

BOND: I don‘t believe that he‘s...

MATTHEWS: ... his report?

BOND: ... he‘s looked at the-at confidential records. I haven‘t read all the records, but have I seen nothing, other than to-to suggest that, when the-when the-when Cheney was briefed on it early on, he said, this is within existing authorities. And, therefore, there-until something happens or something major changes, there‘s no reason to brief the committees.

If something had happened, if some action had been taken...

MATTHEWS: OK.

BOND: ... we definitely should have been briefed. But, nothing happens, they-they don‘t come and brief us. But, when something does happen, or they institute a major action with-with significant consequences, they traditionally do brief us.

MATTHEWS: But what about the principle? Do you believe the vice president would have done something wrong had he, in fact-according to this report, he did-had he told the CIA not to tell you folks on the Hill on the Intelligence Committees about an operation that was being anticipated?

Did-was that wrong, if he did that...

BOND: I don‘t know-I...

MATTHEWS: ... if he told them not to tell you?

BOND: Well, I don‘t think he has the power to tell them not to do that. They have an obligation...

MATTHEWS: Well, that‘s for sure.

(LAUGHTER)

BOND: They have an obligation...

(LAUGHTER)

BOND: They have the obligation to brief us. And-and they had briefed Cheney and others in the White House about...

MATTHEWS: OK.

BOND: ... what they were exploring. They-they have talked with the committees about what they were exploring.

I believe and I would suggest that the House Democrats who are trying to get...

MATTHEWS: OK.

BOND: ... Speaker Pelosi‘s ox out of the ditch go back and look at their own committee records to see what they can find there.

MATTHEWS: Kit Bond, senator from Missouri, thank you, sir, for coming on tonight.

BOND: Thank you, Chris.

MATTHEWS: Up next, we all...

BOND: Always a pleasure.

MATTHEWS: Thank you.