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ERIC HOLDER, U.S. ATTORNEY GENERAL: When the 9/11 conspirators are brought to trial, I have every confidence that the presiding judge will ensure appropriate decorum. And if Khalid Sheikh Mohammed makes the same statements he made in his military commission proceedings, I have every confidence that the nation and the world will see him for the coward that he is.

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MATTHEWS: Welcome back to HARDBALL.

That was attorney General Eric Holder on Capitol Hill today. Well, did he make the right call by sending that trial up to New York? Are critics like Rudy Giuliani right that they said it was a wrong decision for New York and for the country?

With us now, two members of the Congress, of the House of Representatives, California Republican Dan Lungren, who was attorney general out in California-he sits on the Homeland Security Committee-and New York Democrat Jerry Nadler, who sits right there on the Judiciary Committee.

I want to ask you both, gentlemen, about American values, before we get to the issue of security, which is always tricky. I have always been proud as an American that when we started this country, even the members-the British soldiers involved in the Boston Massacre were given a fair trial. And they even had a first-rate lawyer, John Adams, defending them.

I love the fact that this is a country of law. And I hope we can maintain that principle.

Mr. Lungren, do you agree or not?

REP. DAN LUNGREN (R-CALIFORNIA): I agree. But that doesn‘t answer the question as whether they should be tried in a civil trial or whether they should be tried in a military tribunal.

I don‘t think you are suggesting that President Eisenhower didn‘t bring-believe in American values, nor Franklin Delano Roosevelt didn‘t believe in American values, when they had people who were tried by military tribunals who got justice, but did not make a mockery of our courts by-by somehow pretending that they had a right to the full protection of the Constitution of the United States in civil courts.

It is an abysmal decision that moves us in the wrong direction. And any suggestion that you can‘t have justice in military tribunals is belied by the decision by this administration to try other terrorists in those military tribunals.

MATTHEWS: Mr. Nadler, your view?

REP. JERROLD NADLER (D), NEW YORK: Well, I think that this country has been distinguished by a commitment to the rule of law. And it is our glory that we give people fair trials before we send them to prison or execute them.

And the whole experience of Guantanamo has been a stain on our record. It has been a terrible propaganda for us all over the country-all over the world, rather. And the fact that we are going to give these alleged terrorists a fair trial in a federal court is exactly the right thing to do.

Traditionally, we have used military courts, our military tribunals for people captured on the battlefields, when you couldn‘t get to a regular court. And it is exactly the right to do to try them in an appropriate court, and to try them-as traditionally we always have, to try them in the same jurisdiction where the crime occurred.

MATTHEWS: Let‘s bring the president.

LUNGREN: We haven‘t traditionally tried people in this way.

MATTHEWS: Let‘s bring the president in here. I want to-I‘m sorry, Mr. Lungren.

I want to bring the president in right now. He is here talking to NBC‘s Chuck Todd on this point.

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BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Khalid Sheikh Mohammed has been sitting there for years now without us finally convicting him and meting out justice. And part of the goal, I think, of the attorney general is to make sure that justice is no longer delayed and that is something that the American people should be happy about.

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MATTHEWS: Mr. Lungren, this man has been water-boarded 183 times but he‘s never brought to trial even in a military tribunal for six years. Shouldn‘t the Bush administration have done what a lot of people like yourself think that Barack Obama should do now which is give him a military tribunal? Why didn‘t they do it over the last six years?

REP. DAN LUNGREN ®, CALIFORNIA: I can‘t tell you why they didn‘t do it. That doesn‘t make the decision now correct to bring him to a civil court. They will get protections under this decision that they would not get if they were in a military tribunal situation.

So what is suggested here and by Jerry Nadler‘s comments is that someone who fights the United States on the battlefield gets-and doesn‘t attack innocent civilians but rather fights against American forces in uniform gets less rights than someone who commits the ultimate-the ultimate crime going after innocent civilians, men, women and children who were not on the battlefield. That makes no sense whatsoever.

The people who commit the worst crimes get the greatest protection? You don‘t get the full panoply of constitutional protections if you are not in the United States and you‘re in a situation like the military tribunal. Yes, you get justice. But the reason you make a distinction is there are very different circumstances.

How about giving our information that they gained as a result of the civil trial or civilian trial that took place after the attacks in 1993? The presiding judge in that case Mr. Mukasey, said this is crazy.

MATTHEWS: Ok. Mr. Nadler.

Mr. Nadler.

REP. JERRY NADLER (D) NEW YORK: First of all, I can tell you why the Bush administration didn‘t put these people on trial in a military tribunal because they couldn‘t. Because they invented this new military tribunal which they tried to give less rights to defendants in front of and the Supreme Court on several occasions said you can‘t do that.

They set up Guantanamo outside the United States because they thought that people housed in Guantanamo would have no constitutional rights. And the Supreme Court in 2006 said wrong. They have the same constitution rights because it is controlled by the United States as if they were on American soil.

LUNGREN: They don‘t have the same constitutional rights.

NADLER: I think they do. The Supreme Court said so in 2006.

LUNGREN: That‘s not true.

NADLER: It is true.

LUNGREN: No, they didn‘t say they had all the same rights.

NADLER: I didn‘t interrupt you, Dan.

And the fact of the matter is in eight years the administration-the former administration trying to use military tribunals succeeded in getting guilty pleas from three people in the same time period 195 terrorists were convicted in regular courts.

And the thing that Congressman Lungren said about giving information, that is simply not true. The information that was allegedly given about co-conspirators was given because that wasn‘t classified information. We have something called the classified intelligence protection act or procedures act, CIPA back in 1978 which protects classified information and protects information from being used or from being given to terrorists or defendants if it, in fact, is sensitive information. And that prosecutors can use and where appropriate presumably will use.

MATTHEWS: I think a lot of people-gentlemen-

LUNGREN: Outside of that trial that information would not have given out. That is what Judge Mukasey said who is later attorney general of the United States.

NADLER: Yes. And Judge Mukasey has not said that in several recent articles he‘s written because I think he realized that he was mistaken the first time he said it.

LUNGREN: He just said it last week.

NADLER: Well, then he is still mistaken. The fact is that that information-I just checked with the Justice Department today-was not classified at the time and the prosecutors elected-the prosecutors at the time elected to give that to the defendants and didn‘t have to. They could have protected had they wanted to.

MATTHEWS: Congressman Nadler, are you concerned there is going to be violence because there have been suggestions by members of Congress or at least one member of Congress, Mr. Shadegg, there might be hostage taking, there are all kinds of possibilities in a trial situation?

NADLER: No. I‘m not concerned terribly about that. The fact is I am concerned always at the potential of a terrorist attack against New York City. New York City, my hometown, is at the top of the terrorist target list and if they can hit us they will. But the fact that we are holding a trial there does not make it any more or less likely that they will get through our defenses and be able to stage a terrorist attack in New York.

Now, we have tried, as I said, or convicted 195 terrorists since 2001 in courts and we haven‘t had a problem with that. We know how to keep people in secure facilities and we know how to protect our courts.

MATTHEWS: Ok. Thank you very much. Congressman Jerry Nadler and Congressman Dan Lungren of California.