This is a partial transcript from "The O'Reilly Factor," January 12, 2006, that has been edited for clarity.

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BILL O'REILLY, HOST: "Impact" segment tonight, Judge Samuel Alito has finished his third day of testimony in front of a Senate subcommittee. And things are a bit calmer today.

Yesterday, as you may know, the judge's wife, Martha Anne Baumgartner, left the hearing in tears. Apparently, she was upset because her husband was accused of being part of a college club at Princeton. Senators Durbin and Kennedy didn't like it.


SEN. DICK DURBIN (D), ILLINOIS: What is your answer? Why did you include this controversial organization as one of your qualifications for being part of the Reagan administration?

How could you identify with a group that would discriminate against women and minorities?



SEN. TED KENNEDY (D), MASSACHUSETTS: I have to say that Judge Alito — that his explanations about the membership in this sort of radical group, and why you listed it on your job application, are extremely troubling. And in fact, I don't think that they add up.


O'REILLY: In the middle of all this, Senator Lindsey Graham apologized to Alito and his family.


SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Are you really a closet bigot?

SAMUEL ALITO, SUPREME COURT NOMINEE: I'm not any kind of a bigot.

GRAHAM: No, sir, you're not. And you know why I believe that? Not because you just said it, but that's a good enough reason, because you seem to be a decent, honorable man. Judge Alito, I am sorry that you've had to go through this. I am sorry that your family has had to sit here and listen to this.


O'REILLY: Senator Graham joins us now from Washington. You got emotional about that.

GRAHAM: Yes, it bothered me big time. I know what the evidence is about his character, about his integrity. And they were trying to do guilt by association.

They had an article written by a guy that just Alito doesn't even know, that was a really terrible article and tried to provide guilt by association.

O'REILLY: Well, they're trying to smear him.

GRAHAM: Well, that's — it was way out of bounds. I saw how his wife and his son reacted all day. And I wanted her to hear from me that I know better about your husband and I am sorry we did this.

O'REILLY: Are you surprised Durbin and Kennedy tried to smear him?

GRAHAM: Well, let me tell you. They're being pushed by the left. These hearings are way too political. We're answering to too many masters. We need to ask good, honest questions and not have a political agenda. Probe the judge, but don't do someone else's bidding. And I think the political process of judge confirmation is going to ruin the judiciary if we don't stop it.

O'REILLY: All right, you dodged my question.

GRAHAM: I'm sorry. Did I think — what was the question again?

O'REILLY: The question is Kennedy and Durbin are both very experienced senators.

GRAHAM: Mm-hmm.

O'REILLY: Were you surprised they tried to smear Alito?

GRAHAM: I think — I was surprised they did this. I was surprised that they tried to do the guilt by association. And it made me mad.

O'REILLY: But it's more than guilt by association, because there is no guilt. You know, this guy was a member of a big club in Princeton, when he was a kid, when he was younger. Decades ago. Not like last week.

GRAHAM: Judge Napolitano is a member of this group. Laura Ingraham's a member of this group when it was in existence.

O'REILLY: Right. I mean, so all this was — this is what disturbs me about this, senator.


O'REILLY: All this was was Durbin and Kennedy going up there, intentionally trying to inflict pain on the nominee and the nominee's family.

Now we see this in the press all the time. We see it all the time in the press. Now we're seeing it in front of the world. And the world watched those hearings and saw.

GRAHAM: Absolutely.

O'REILLY: Kennedy and Durbin try to smear — even if they disagree with Alito.

GRAHAM: Exactly.

O'REILLY: He's a good man.

GRAHAM: Exactly, exactly.

O'REILLY: You don't smear a man in front of the world while his wife and family are sitting behind him on nothing. This was nothing.

GRAHAM: This was beyond nothing. This was — they knew what the evidence was about the man. And these accusations and associations were of people he didn't even know. The writer of this article that was so bad, Judge Alito didn't even know.

O'REILLY: Never met the guy.

GRAHAM: Never met him.

O'REILLY: I mean, look, all of us in college...

GRAHAM: You're getting me mad again.

O'REILLY: I mean, you know, we have associations 30 years later, we're going, whoa.

But look, this is what I'm worried about here and this is a huge issue. Politics in this country are degenerating.

GRAHAM: Yes, sir.

O'REILLY: OK? They're getting — look, you just graduated from the House of Representatives to the Senate. The Senate is supposed to be more civil than the House. It's supposed to be the body that brings some perspective and class to the nation.

And I have watched smear merchants in the form of Kennedy and Durbin and a few others, but not as bad as those two, know what they're doing. It's not like they don't know. They know. And they do it anyway.

GRAHAM: Yesterday was not a god day for the United States Senate. There's been a backlash, Bill. Today, the behavior was much better. It was much more reasoned.

And if we continue this practice of trying to take cheap shots against good people, we're going to drive good men and women away from trying to be judges.

O'REILLY: It's already happened. It's already happened. It's already happened in this country.

GRAHAM: Right.

O'REILLY: We have a lot of good men and women, would like to do public service say, look, I'm not going to get my life torn apart by these sleazy people.

Now I want to — I'm going to take a break. I want to bring you back and talk about torture, OK?


O'REILLY: Because you brought it up with Alito when you were talking to him.


O'REILLY: And this is another really troubling issue I think that is very important for the American people to engage in.

We'll have more with Senator Graham in a moment.

GRAHAM: Absolutely.


O'REILLY: Continuing now with Senator Lindsey Graham from South Carolina.

As I mentioned, the senator did ask Judge Alito about torture. Do you believe the Bush administration has ordered torture of captured terrorists?

GRAHAM: No, I do not.

O'REILLY: Then why are we talking about torture? And why has this become, now in many circles, an accepted reality that the Bush administration orders torture? Why has that happened?

GRAHAM: Well, because if you say it long enough, it becomes reality. The critics of the Bush administration are trying to suggest that our country has engaged intentionally in interrogation techniques that violate the torture statute.

We've had individuals who engaged in techniques and activity that were a crime under the Uniform Code of Military Justice. There was a memo by Mr. Bibey (ph) in the Attorney General's office early on, after9/11, suggesting a very odd interpretation of the torture statute. That kind of started this.

But no, I have seen no evidence that our country has authorized as a body the use of torture. And I hope we never do.

I'm a military lawyer. I'm now a military judge. I respect the Geneva Convention. And I reject the torture of enemy prisoners in our charge because it will affect us down the road.

O'REILLY: Is there a difference in your mind between torture and coerced interrogation because some people.

GRAHAM: Absolutely. Absolutely.

O'REILLY: Some people believe that any kind of, you know...

GRAHAM: Right.

O'REILLY: ...deprivation of sleep, light, noise...

GRAHAM: Right.

O'REILLY: ...water boarding...

GRAHAM: Right.

O'REILLY: ...all of that stuff that the CIA describes as coerced interrogation, they say is torture.

GRAHAM: Well, we're throwing words around. And you're the first person to make that distinction. Torture has been a crime long before the McCain amendment that I supported. We ratified the Convention on torture under the Reagan administration, making it a crime to torture people.

Cruel, inhumane, degrading treatment is different than torture. Coercion is different than cruel, inhumane, and degrading treatment. Keeping people up, stressful, physical, and psychological activity are acceptable means of interrogation. Always has been. Always will be.

O'REILLY: Acceptable in the military? Because they're not acceptable in criminal.

GRAHAM: When it comes to getting information from a prisoner, we have techniques in the civilian world where you can go to the guy and say, "Your friend just told us you did it."

O'REILLY: Yes, you can use subterfuge.


O'REILLY: But you can't put him on a board and put him in — under water.

GRAHAM: No, right, right.

O'REILLY: I mean, they'd pull the case out of.

GRAHAM: Right. That's exactly right. That's exactly right.

O'REILLY: There's a difference between military justice and.

GRAHAM: You can't do that in the military. You cannot physically abuse a troop.

O'REILLY: Well, the water boarding thing, you know.

GRAHAM: Yes, I don't know about that. The CIA is alleged to have done that. But in the military, I would advise any commander not to go down that road because you'd violate the Uniform Code of Military Justice.

O'REILLY: I think we have to define what's OK and what isn't.

GRAHAM: That's exactly right.

O'REILLY: Last question, do you believe that captured terrorist suspects not in uniform...

GRAHAM: Right.

O'REILLY: ...not fighting for their country...

GRAHAM: Right.

O'REILLY: .are entitled to Geneva protections?

GRAHAM: No. They are not entitled to Geneva Convention protections because it's reserved for people playing by the rules. And enemy combatant and illegal combatant is someone who is engaging in unlawful warfare.

They are entitled to humane treatment under our Convention against torture under the Uniform Code of Military Justice, but they should not be treated under the Geneva Convention because it would weaken the Convention. They would be getting a right they haven't earned.

And I support the president when he says they're not qualified under the Convention. It would erode the Convention.

O'REILLY: All right. So if you capture one of these guys, then it's military justice, military courts for them.

GRAHAM: Absolutely. In World War II, we had six saboteurs land on our shores, who shed their uniforms. They were Germans. American citizens. They were tried by the military. That's where they should be tried.

O'REILLY: That's right.

GRAHAM: And enemy terrorists should be tried by the military at Guantanamo Bay.

O'REILLY: All right, senator, I agree with you. Thank you very much. I appreciate it.

GRAHAM: Thank you.

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