The MacNeil/Lehrer NewsHour

MR. MacNeil: Good evening. Leading the news this Wednesday, Israel released 51 Arab prisoners after receiving information on one of its missing servicemen, Soviet President Gorbachev said his country would soon begin removing troops from Cuba. We'll have details in our News Summary in a moment. Jim.

MR. LEHRER: After the News Summary, we concentrate on the two big congressional hearings of the day, those on the nomination of Clarence Thomas to the U.S. Supreme Court, and those on the role of Washington lawyer Clark Clifford in the BCCI banking scandal. NEWS SUMMARY

MR. MacNeil: A broad-based deal to gain the release of Western hostages in Lebanon took a step ahead today with Israel's release of a group of Lebanese prisoners and the bodies of several Muslim guerrillas. We have more in this report narrated by Louise Bates of Worldwide Television News.

MS. BATES: The day's extraordinary events began with Israel handing over the bodies of nine pro-Iranian militia men to the International Red Cross at the small Lebanese border crossing of Rosh Hanikra. The men had been killed several years ago during fighting in Israeli-controlled Southern Lebanon. The gesture was apparently aimed at speeding up negotiations on the release of hostages and was an appreciation of the recent efforts of United Nations Secretary General Perez DeCuellar. This gesture was further reinforced when later in the afternoon, the order was given to release 51 Arab prisoners from the notorious Al Kiam Prison. The initiative took everyone by surprise, especially the former prisoners who suddenly found themselves being hustled onto a bus. They were later handed into the custody of the Red Cross and taken back to Southern Lebanon. Gen. Antoin LaTai, Commander of the Israeli-backed South Lebanese army, told reporters that the humanitarian gesture was in response to conclusive evidence that an Israeli soldier missing since 1986 was dead. What happens next is uncertain and even Uri Lubrani, the Israeli Spokesman on Lebanon, refused to be drawn on the question of further releases.

URI LUBRANI, Israeli Spokesman: Everything is possible, but I don't know whether it's likely.

MR. MacNeil: UN Sec. Gen. Javier Perez DeCuellar discussed the hostage issue with Iranian leaders in Tehran today. A UN spokesman said the Secretary General was encouraged by the release of the Arab prisoners and would redouble his efforts to find a solution. Jim.

MR. LEHRER: President Bush today denied he promised Israel $10 billion in housing loan guarantees. He called statements by Israeli officials about a specific amount misleading. Mr. Bush has asked Congress to delay action on the Israeli loan request to avoid complicating efforts to convene a Middle East peace conference. Israeli housing minister Ariel Sharon said today the President had fallen into what he called an "Arab trap" of demanding concessions from Israel before peace talks even began. At a White House photo opportunity reporters asked Mr. Bush if he could avoid a confrontation with Israel.

PRES. BUSH: We're talking about working harmoniously together in a spirit of cooperation and I've seen comments that -- from abroad that I didn't particularly appreciate, but that -- that's -- we're the United States of America, and we have a leadership role around the world that has to be fulfilled,and I'm calling the shots in this question in the way I think is best, and I've got some selling to do with certain members of Congress, and that's understandable to me.

MR. LEHRER: White House Spokesman Marlin Fitzwater later said Mr. Bush had told members of Congress he would support quick action on the loan guarantees after a 120 day waiting period. The President also agreed to offset any costs to Israel caused by that delay.

MR. MacNeil: Mikhail Gorbachev said today he would start withdrawing Soviet troops from Cuba. He did so after a meeting with Sec. of State Baker in Moscow. We have more from Gaby Rado of Independent Television News.

MR. RADO: The last time the U.S. Sec. of State, James Baker, shook hands with President Gorbachev was at the Moscow summit in July. Since then, virtually everything in the Soviet Union has changed. Mr. Baker did today pay President Gorbachev due respect, but it may have been a feeling on the Soviet leader's part that he had to produce something spectacular from his bottomless bag of surprises that made him announce his initiative on Cuba.

PRES. GORBACHEV: [Speaking through Interpreter] I told the Secretary that we will soon begin discussion with the Cuban leadership about the withdrawal of a Soviet training brigade that was stationed in Cuba sometime ago and that is still there.

MR. RADO: Mr. Baker, never one to show great emotion, seemed grateful.

JAMES BAKER, Secretary of State: I thank you for your statement with respect to the question of the training brigade in Cuba. That will be very important in terms of public opinion in the United States.

MR. RADO: The Cubans maintain a big embassy and a large diplomatic presence in Moscow. They were one of the last few fraternal socialist allies left after the fall of Communism in East Europe, but following the coup, there were plenty of signs that the Kremlin would downgrade its ties with Cuba. The abject economic failures of Soviet style Communism in the Caribbean island has helped that process.

MR. LEHRER: The 14 alleged Soviet coup plotters have entered pleas in court. A spokesman for the Russian prosecutor's office said one pleaded guilty, ten "not guilty," none were identified. The Tass News Agency said the other three admitted partial guilt. If convicted, the plotters could face the death penalty or up to 15 years in prison. The prosecutor's spokesman said President Gorbachev would testify at the trial.

MR. MacNeil: Abortion was the primary issue at the second day of confirmation hearings for Supreme Court Nominee Clarence Thomas. He again refused to say whether he believed the Constitution granted women the right to have an abortion. He was asked for his personal feelings about the era before abortions were made legal.

JUDGE CLARENCE THOMAS, Supreme Court Nominee: I guess as a -- as a kid we heard the hushed whispers about illegal abortions, and, umm, individuals performing them in less than safe environments, but they were whispers. It would, of course, if a woman is subjected to the agony of an environment like that on a personal level, certainly I am very, very pained by that. I think any of us would be. I wouldn't want to see people subjected to torture of that nature.

MR. MacNeil: We'll have excerpts and analysis of today's session after the News Summary.

MR. LEHRER: Longtime Democratic Advisor Clark Clifford said today he and his partner had clear consciences about what happened to their Washington bank. Clifford said they did not know their bank had been secretly acquired by the Bank of Credit & Commerce International. He told the House Banking Committee he and Robert Altman were not guilty of any misconduct or impropriety. BCCI was shut down in July amid allegations of criminal wrongdoing. We'll have more on this story later in the program. At a Senate banking hearing today the Treasury Department announced it was changing its auction process in the wake of the Salomon Brothers Scandal. The New York investment bank disclosed last month that it violated legal bidding limits during several Treasury auctions. In the future, the Department will require written verification of all bids.

MR. MacNeil: A Continental Express commuter plane crashed in Southeastern Texas today, killing all 14 on board. It went down 60 miles West of Houston. The twin engine plane was en route to Houston from Laredo, Texas. It was carrying 11 passengers, two pilots, and a flight attendant. Witnesses said they heard an explosion and saw the plane on fire before it hit the ground. National Transportation Safety Board investigators were expected at the site today.

MR. LEHRER: Mike Tyson said today he did not rape an 18 year old beauty pageant contest. The former heavyweight boxing champion arrived in Indianapolis this morning to enter a form plea of "innocent" before a Superior Court Judge. Later, Tyson was booked, fingerprinted and released on $30,000 bail. The trial is scheduled for January 27th.

MR. MacNeil: And that's our News Summary. Now it's on to fuller coverage of the Clarence Thomas confirmation and Clark Clifford's testimony at the BCCI hearing. FOCUS - DAY TWO

MR. LEHRER: Day Two of Clarence Thomas and the Senators is first again tonight. The nominee for the U.S. Supreme Court spent five hours in the Senate Judiciary Committee witness chair today. Roger Mudd presents our extended excerpts.

MR. MUDD: Covering a Supreme Court confirmation hearing has become more like covering a Presidential debate. Everybody wants to tell you why their candidate won. Outside the Senate caucus room, the spin doctors were back. The hallway was choked with lobbyists from the big civil rights groups, lobbyists from the women's groups and the abortion league, lobbyists from the White House, lobbyists from the conservative activists, from the family value groups, lobbyists from groups you've never heard of, and all of them trying to put their spin on the Clarence Thomas testimony. But inside the caucus room, the nominee was on his own -- spin or no spin -- and today Clarence Thomas was having to come to grips with his record.

JUDGE CLARENCE THOMAS, Supreme Court Nominee: I have written and I have been interviewed quite a bit. I've been candid over my career. My wife said to me that to the extent that Justice Souter was a Stealth nominee, I am Big Foot.

MR. MUDD: Calling himself "Big Foot" was disarming, of course, but it was also revealing, because one of Judge Thomas's biggest problems are his legal footprints. His paper trail -- his speeches, articles, policy statements -- is enormous! In addition, during his testimony yesterday, there were several attempts to cover or even change that trail. And that's precisely where Democrat Howard Metzenbaum began this morning.

SEN. HOWARD METZENBAUM, [D] Ohio: Judge Thomas, I'm frank to say to you, I want to be fair in arriving at a conclusion and I feel that I speak for every member of this committee wants to be fair. Our only way to judge you is by looking at your past statements and your record. And I'll be frank -- your complete repudiation of your past record makes our job very difficult. Your statement yesterday in support of the right to privacy does not tell us anything about whether you believe that the Constitution protects the woman's right to choose to terminate her pregnancy. I fear that you, like other nominees before the committee, could assure us that you support a fundamental right to privacy, but could also decline to find that a woman's right to choose is protected by the Constitution. And if that happens soon, there could be nowhere for many women to go for a safe and legal abortion. I must ask you to tell us here and how whether you believe that the Constitution protects a woman's right to choose to terminate her pregnancy. And I am not asking you as to how you would vote in connection with any case before the Court.

JUDGE THOMAS: It is important for any of us who are judges in areas that are very deeply contested, in areas where I think we all understand and are sensitive to both sides of a very difficult debate that for a judge -- and as I said yesterday, for us who are judges, we have to look ourselves in the mirror and say, are we impartial or will be perceived to be impartial -- I think that to take a position would undermine my ability to be impartial and I have attempted to avoid that in all areas of my life after I became a judge and I think it's important.

SEN. METZENBAUM: Having said that, Judge, I will just repeat the question, and do you believe -- I'm not asking you to prejudge the case -- I'm just asking you whether you believe that the Constitution protects a woman's right to choose to terminate her pregnancy.

JUDGE THOMAS: Senator, as I noted yesterday, and I think we all feel strongly in this country about the -- our privacy -- I do -- I believe the Constitution protects the right to privacy. And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.

SEN. METZENBAUM: I'm not asking you to prejudge it. Just as you can respond and I will get into some of the questions to which you responded yesterday both from Senators Thurmond, Hatch and Biden about matters that might come before the court, you certainly can express an opinion as to whether or not you believe that a woman has a right to choose to terminate her pregnancy without indicating how you expect to vote in any particular case, and I'm asking you to do that.

JUDGE THOMAS: Senator, I think that to do that would seriously compromise my ability to sit on a case of that importance involving that important issue.

MR. MUDD: Five times Metzenbaum asked Thomas the abortion question, but without success. Then he tried listing the cases Thomas had commented on yesterday without hesitation, work safety, food safety, child care.

SEN. METZENBAUM: Now all of those issues could come before the court again just as the Roe V. Wade matter might come before the court again, so my question about whether the Constitution protects a woman's right to choose is frankly not one bit different from the types of questions that you willingly answered yesterday from other members of this committee. So I have to ask you, "How do you distinguish your refusal to answer about a woman's right to choose to terminate her pregnancy with the various other matters that may come before the Supreme Court to which you've already --

MR. MUDD: Then just when it appeared Metzenbaum had Thomas in a corner, Republican Strom Thurmond tried to help him.

SEN. STROM THURMOND: Since my distinguished colleague has mentioned my name several times, I would like to make a big comment here and --

MR. MUDD: Metzenbaum objected. Chairman Biden intervened.

SEN. BIDEN: The witness was about to answer the question. Immediately upon him answering the question, then I'll yield to the Senator from South Carolina to make his point, whatever the point is.

JUDGE THOMAS: I may have not made myself very clear, Senator. The questions that Sen. Thurmond and concerns that he raised about cases, those were recent cases. I do not believe -- then again I've not had an opportunity to review the transcript that I commented on or agreed -- that I agreed with or supported or sustained - - the judgment or the outcome in those cases. I --

SEN. METZENBAUM: That's all I'm asking you on this, to do the same kind of response that you gave Sen. Thurmond. I'm not questioning your position. Whatever your position is, it is perfectly fine. What I'm saying is that if you were able to respond as you did yesterday to questions from Senators Thurmond, Hatch, and Biden with reference to matters in the Supreme Court or that may be turned to the Supreme Court, then why, Judge Thomas, can't you tell us about a woman's right to choose, which is understandably one of the most controversial issues in the country? I'm not asking you as to how you will vote in connection with that issue.

SEN. STROM THURMOND, [R] South Carolina: It's on that very point that I think I'd like to make a statement.

SEN. BIDEN: The Senator is recognized and the time will not come out of the Senator from Ohio's half hour.

SEN. THURMOND: I want to say that no question I asked Judge Thomas to answer in any way required him to comment about he would rule on a case that could come before the Supreme Court. My distinguished colleague, Sen. Metzenbaum, as a lawyer must know that the questions I asked the nominee were areas where the law is well settled. I strongly believe it is inappropriate to ask a nominee how he would rule in a particular case. Judges must be impartial. For a judge to have preconceived notions about how he would rule in a case would clearly undermine the independence of the Judiciary.

MR. MUDD: Finally, it appeared Thomas had weathered the storm. The White House lobbyist, Ken Duberstein, and the Judge's Senate patron, John Danforth of Missouri, both looked relieved and pleased.

SEN. PATRICK LEAHY, [D] Vermont: Judge, I'd like to just go over a couple of points prompted by some of your earlier testimony.

MR. MUDD: Democrat Patrick Leahy of Vermont tried a different angle on abortion.

SEN. PATRICK LEAHY: Judge, does a fetus have a Constitutional status as a person?

JUDGE THOMAS: [Pause] Senator, I can't think of any cases that have held that. I would have to go back and rethink that. I can't think of any cases that have held that.

SEN. LEAHY: If somebody were to raise that issue in a court, how would a judge go about making a determination of that?

JUDGE THOMAS: Senator, I can only offer this -- and I have not made that determination -- and I have not gone through that kind of an analysis -- but, of course, one rely in any case in which one is making a difficult determination, one will rely on the adversarial process to sharpen the issues. One would rely on precedent; one would certainly rely on related areas, such as the area of medicine, I think. In the area in Roe V. Wade I think that there was considerable reliance on medical evidence. But, again, I'm speculating -- I'm doing that in a vacuum.

SEN. PATRICK LEAHY, [D] Vermont: In an area like this do you rely on theology, do you rely on juris prudence, do you rely on medical, or do you rely on experience?

JUDGE THOMAS: Senator, again, I would like to just simply say that on -- of course, one could see where medical, certainly experience and one could see where precedence would be relevant. I don't see at this point where theology would be relevant. But, again, I would like to refrain from further speculation in this very difficult area.

SEN. LEAHY: You were in law school at the time Roe Vs. Wade was decided. That was eighteen years, seventeen, eighteen years ago. Have you ever, private gatherings, otherwise, stated whether you felt that it was properly decided or not?

JUDGE THOMAS: Senator, I am trying to recall and reflect on that. I, uh, don't recollect commenting one way or the other. There were, again, debates about it in various places, but I generally did not participate. I don't remember or recall participating.

SEN. LEAHY: So you don't ever recall stating whether you thought it was properly decided or not?

JUDGE THOMAS: [Pause] I can't recall saying one way or the other, Senator.

SEN. LEAHY: With all due respect, Judge, I have some difficulty with your answer that somehow this has been so far removed from your discussions or feelings during the years since it was decided while you were in law school. You participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges or immunity clause. You have referred to Louis Lehrman's article in the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum, absent some very clear considerations of Roe Vs. Wade and, in fact, twice specifically citing Roe Vs. Wade.

JUDGE THOMAS: Senator, your question to me was, did I debate the contents of Roe Vs. Wade, the outcome in Roe Vs. Wade, do I have this day an opinion, a personal opinion, on the outcome of Roe Vs. Wade, and my answer to you is that I do not.

MR. MUDD: There remains a difference of opinion on whether Thomas's refusal to answer the abortion question is because of a fear of jeopardizing his judicial impartiality or a fear of jeopardizing his judicial nomination. Republicans on the committee had a different take on Thomas's record. Charles Grassley of Iowa remembered Judge David Souter's declaration that the court should fill in the legislative vacuum and asked Thomas about judicial activism.

SEN. CHARLES GRASSLEY, [R] Iowa: I guess my question is, you know, every basic, how much filling in are you going to do as a Supreme Court Justice? I hope you can clarify something here. Do you think that there is a role for the courts to be activists this way in the terms of filling vacuums or, as you said, filling in the generalities and resolving contradictions of the law? Maybe in a wider area I'd want you to explain when is judicial activism legitimate.

JUDGE THOMAS: [Short Pause] I don't think that it is legitimate, Senator, and perhaps let me respond to your specific question.

SEN. GRASSLEY: Sure.

JUDGE THOMAS: The point that I was making there, and it's one that is an important point, is that when an agency, an administrative agency, receives a statue, it has -- it is called upon to implement that statue to develop regulations, perhaps internal rulings or procedures. But it's always called upon to do that consistent with the intent of this body, that the statute on its face may be general, it may be ambiguous. The agency has to go through a process, however, of determining in a reasonable way what your intent was. I think a court does the same thing, that when there is ambiguity in the statute, the court simply goes back to your legislative history and attempts to discern what was Congress's intent.

MR. MUDD: What bothered Arlen Specter of Pennsylvania was the question of Thomas's possible hostility toward the legislature.

SEN. ARLEN SPECTER, [R] Pennsylvania: In a speech on April 8, 1988, copy provided to you, you said, "Congress is no longer primarily a deliberative or even a law making body. There is little deliberation and even less wisdom in the manner in which the legislative branch conducts business. Members act for "their own interests." "Interests of few take precedence over interests of them many." What assurances will we have that you will respect congressional intent?

JUDGE THOMAS: The difficulties that I have expressed differences, particularly as one who's been involved in the oversight process, but I think I've made it clear that the legislative function of Congress, that the oversight function of Congress are very appropriate, and, again, I can't go back through all the speeches, but my view would be that the court, it is the court that cannot legislate, not Congress, and that the court would be, umm, misplaced in attempting to establish policy, not Congress.

MR. MUDD: After a full day of interrogation and of generally holding his own, Thomas was excused until tomorrow morning, when a second round of questioning begins.

MR. LEHRER: Now some analysis of what Thomas said today. It comes again tonight from Elaine Jones, Deputy Director Counsel for the NAACP Legal Defense Fund and Dan Rodriguez, professor of public and administrative law at the University of California at Berkeley. Going in, Ms. Jones opposed the Thomas nomination; Professor Rodriguez supported it. Prof. Rodriguez, anything happen today to shake your support?

PROF. RODRIGUEZ: Judge Thomas did well. I think the difficulties he had today were somewhat reminiscent of the difficulties he had yesterday, responding to direct questions about some statements he had made in the past. It still concerns me that he hasn't had the occasion or the opportunity to develop sufficiently well before the Senators a consistent Constitutional philosophy, an approach to judging. He seemed to rely over the past two days on a belief that judges come to questions undecided and he is, in a sense, an empty vessel, a judge that content will be poured into his judicial philosophy. I think that is a subject of concern. I --

MR. LEHRER: You don't believe that, right?

PROF. RODRIGUEZ: Well, I guess I don't believe it to the extent that most of us are skeptical about the notion that Judge Thomas, or anyone else, for that matter, will come to the Supreme Court with no predilections, with no views, with no opinions about the crucial issues of the day, much less about important issues of judicial methodology, constitutional and statutory interpretation. I don't think that's what Judge Thomas believes as well. I think he is, of course, in a dilemma, and it's a dilemma well illustrated by the question about abortion -- on the one hand, the unwillingness, the understandable unwillingness to take a definitive view on a very controversial public issue, and at the same time not wanting to come off as someone who has, as he seemed to suggest in response to a question from Sen. Leahy, as someone who hasn't thought at all about this issue over the course of his legal career.

MR. LEHRER: Well, do you believe that? Do you believe that he doesn't hold an opinion on abortion?

PROF. RODRIGUEZ: I guess I don't believe that. I guess I believe in his heart of hearts he probably does have at least a beginning to be formed a view about abortion. Now, I want to say this. I take him at his word, that his own personal views about abortion would not affect his own approach to deciding those questions before the Supreme Court. I think that he would like to respond to Sen. Leahy and others in a way that is probably impossible to in the context of Judiciary hearings, which is something like it's none of your business what I think about abortion personally. The question for you, Senators, is whether I should be confirmed to the Supreme Court as a Justice, one with fidelity to the law and to the Constitution.

MR. LEHRER: Elaine Jones, how do you feel about the "empty vessel" concept that Clarence Thomas is trying to project here in these hearings?

MS. JONES: I agree with Professor Rodriguez that Clarence Thomas is not an empty vessel and that Clarence Thomas has views and that Clarence Thomas should to the extent that he can, at the same time protecting his impartiality and his independence as a jurist, he should share those views with the committee, because he's coming across as one who is evasive and as one who really strains credibility. There's the point that I made last night. He appears - - he appears as if he will say whatever a particular audience wants to hear, except when he thinks a particular thought will hurt him. For example, for the past couple of days he's been wrapping himself in the cloak of civil rights. He's been discussing how he's been a defender of civil rights for conservatives, that's why he adopted the natural law philosophy, just as a political theory to discuss slavery. I mean, and he goes on about, uh -- makes these lofty pronouncements and these preachments about inequality. But yet, that's the Clarence Thomas of today. The Clarence Thomas of preconfirmation Clarence Thomas at every opportunity that he had to enforce the law vigorously, time that he had the full power of EEOC, to seek certain remedies which were lawful, he declined to do so. Not only that, he ran around the country for every conservative group criticizing and castigating civil rights decisions that the Supreme Court had been struggling with. The Clarence Thomas of today and yesterday wrapped himself up in the cloak of Martin Luther King and cited Sandy Lou Hamer, and talks about Thurgood Marshall, yet, that same preconfirmation Clarence Thomas ridiculed Thurgood Marshall, said Thurgood Marshall's views on the Bicentennial were misguided, and he criticized Thurgood Marshall's views on the original Constitution and said that they were incomprehensible and that Thurgood Marshall was exasperating insofar as he had those views. I mean, so issue after issue -- today, with regard to Bob Jones, that's the case that the Reagan administration decided that schools, private schools should be able to get tax exempt status when they discriminated on a basis of race. Well, the Supreme Court said, no, Clarence Thomas took the view today that the Reagan administration was wrong, and he disagreed with that. That's today. But the Clarence Thomas, the pre-confirmation Clarence Thomas took the position that the Reagan administration had a valid point both in 1987 and in 1988.

MR. LEHRER: So what's going on?

MS. JONES: Where is the real Clarence Thomas? I am disturbed. I am profoundly disturbed that the things that he's saying today are in many instances directly contradictory to earlier pronouncements.

MR. LEHRER: Do you agree with that, Prof. Rodriguez, that they are that contradictory?

PROF. RODRIGUEZ: No. On civil rights, I didn't have that reaction at all. In fact, I think one of his strongest points in today's long hearings were his answers in connection with civil rights which for the most part didn't come until late in the afternoon in connection with his colloquy with Sen. Specter. I think he was particularly successful in sort of recovering the agenda from interest groups, from those who have announced opposition to Judge Thomas, and describing rather well his own differences -- some of them ideological differences, some of them interpretive differences, and perhaps at root, some of them basic political, or perhaps even moral differences, about how best to achieve the goals that we all share and the Senators share, that is, the goals of the color blind society. He talked, in particular, about his emphasis during his time at EEOC and otherwise toward a model of civil rights enforcement. They've concentrated on heavier fines, on more aggressive, case by case adjudication with claims pressed by EEOC. So as to the general claim of confirmation conversion, there are a number of issues that have come out in connection with the confirmation hearings thus far. But as to civil rights, there Judge Thomas is really playing to his strengths. Now, there is a question of the record and it's sort of strange to say this after hours of testimony, but it is still rather early. And over the next few days, I suspect, we're going to hear in detail much more than we've heard thus far about Judge Thomas's tenure at the EEOC. And that is a controversial tenure. And I think we all understand that. But as to the general themes of civil rights enforcement, the ways in which natural law, notions of all men being created equal, inform his Constitutional philosophy and his view towards civil rights, I think as to that frankly, he did pretty well, much better, I think it must be admitted, than he did in connection with other issues and other --

MR. LEHRER: Well --

MS. JONES: I --

MR. LEHRER: Yes, go ahead.

MS. JONES: I just want to say I think Dan Rodriguez is right when he says he's "playing" to his strengths, because it seems as if it is a game. And once he came in yesterday and he talked about affirmative action principles and he conceded that he, himself, benefited from these principles, yet, yet, he had throughout his preconfirmation period of five years before he went on the Court of Appeals lambast and ridiculed these same principles. Once you have benefited from an issue and from a program, to say to Sen. Specter, for example, in the case Local 28, that those -- that type of person who had been victimized and discriminated against as a matter of law, that they then should not benefit from the affirmative action remedy is unconscionable.

MR. LEHRER: Let's talk just for a couple minutes about the abortion thing so much time was spent on it today. Elaine Jones, do you think -- is there any question in your mind about what Clarence Thomas's view is on abortion?

MS. JONES: I do not know what Clarence Thomas's view is. I have suspicions. I do not know what it is. I do think that since Clarence Thomas has discussed other areas of the law that are coming up, that have been before the court yesterday -- yesterday Prof. Dan Rodriguez raised the point of Moore Vs. Cleveland that Clarence Thomas had indicated that although he'd indicated earlier that that case was wrongly decided, he indicated yesterday that it was rightly decided and that he, Clarence Thomas, would have been hurt had it been decided the other way. He can discuss it with Moore, he talked about death penalty cases and appeals in death penalty cases. He talked about victim impact statements. He can discuss the pros and cons of all of these Constitutional issues, but when it comes to abortion, he pulls down the shutter.

MR. LEHRER: Why won't he discuss it, Prof. Rodriguez, and why do you think he shouldn't?

PROF. RODRIGUEZ: Well, to paraphrase or I suppose quote Sen. Biden, a phrase that he used early on this morning, you know and I know and we all know why he won't, whether or not he can, discuss abortion in particular. Judge Souter, interestingly enough, I think gave very interesting response in response to Sen. Kennedy's question in his confirmation hearings and it essentially went like this, I could comment on what I personally think about abortion, in the same paragraph in which I say that my personal opinion about abortion won't affect my approach to the Constitution, but that won't wash. That is, the American people and the United States are likely to take what I say about my personal views of abortion and use it as, as an occasion to draw conclusions about my own views about how I'll interpret the Constitution. Now I want to say this. I guess I agree with Ms. Jones. I think he does have a problem. He has, in fact, commented on specific cases. I don't think it's enough to suggest, as did Sen. Thurmond, that because those cases are well established or old cases or things like that, but he is definitely on the horns of a dilemma. Without wanting to comment on arguably the most explosive issue of our times, at the same time without wanting to come across by not commenting on any cases as though he has no views about judging, about the Constitution, about statues, I think he can recover, and I think the way he can recover is by articulating more fully his own theory of Constitutional adjudication and then talk about specific cases and specific doctrines with reference to that theory at a general level, since I don't think he's going to talk about outcomes in specific cases anymore after today.

MR. LEHRER: In a general sense, in a word, Prof. Rodriguez, is Clarence Thomas in better shape after two days of testimony then was going in or worse?

PROF. RODRIGUEZ: Maybe a little worse, maybe a little worse.

MR. LEHRER: What do you think, Elaine?

MS. JONES: I think he's much worse. I think he has views on abortion. I -- and the Senators have made clear that he doesn't have to articulate those views, but he should be willing to discuss the issues. And I do not think that is his decision to make as to whether or not he will discuss those issues, because he has an obligation to the U.S. Senate and to the American people to discuss them.

MR. LEHRER: All right. Elaine Jones, Dan Rodriguez, thanks again.

PROF. RODRIGUEZ: Thank you. FOCUS - INSIDE STORY

MR. MacNeil: There was another dramatic hearing today in Washington, this one on the BCCI banking scandal. Ever since nations around the world shut down the Bank of Credit & Commerce International last July, it's been the focus of an ever widening tale of fraud and corruption. In the United States, much attention has centered on the case of the Washington, D.C.-based First American Bank and on the two prominent lawyers at its helm, Clark Clifford and Robert Altman. Judy Woodruff has our report.

MS. WOODRUFF: Eighty-four year old Clark Clifford is one of the elder statesmen of Washington, an adviser to Democratic Presidents from Truman to Carter, Sec. of Defense under Lyndon Johnson, he is a power broker with an impeccable reputation nowthreatened by the BCCI scandal. His law firm specializes in helping corporate clients find their way through the bureaucracy of the federal government. Clifford has represented BCCI since the late 1970s with the help of his young protege, Robert Altman. Altman is also well known in Washington social circles for his marriage to Actress Linda Carter, star of the 1970's television series "Wonder Woman." In 1977, Clifford and Altman represented Jimmy Carter's budget director, Burt Lance, before the Senate on ethics charges relating to Lance's alleged improprieties at his National Bank of Georgia. Soon after, Lance introduced them to Pakistani banker Agha Hasan Abedi, founder of BCCI, who wanted to penetrate the lucrative American banking industry. Clifford and Altman then began to represent a group of wealthy Arab investors openly backed by BCCI. They were trying to take over a Washington bank company, Financial General Bankshares. With federal regulators leery even then of BCCI's questionable banking practices, the efforts were unsuccessful. Then, in 1981, Clifford and Altman went to the Federal Reserve with a new, expanded group of Middle Eastern investors who wanted to buy Financial General. Still suspicious, regulators wanted to know if BCCI was behind the plan. Clifford assured them, "I know of no present relationship with BCCI. I know of no future relationship." The deal went through. Clifford became chairman of the newly renamed First American Bankshares. Altman was named president and their law firm was retained as general counsel to the bank, collecting legal fees of several million dollars. A recent Federal Reserve report shows that many of the 1981 investors were acting all along as fronts for BCCI. Clifford and Altman now say they, like everyone else, were duped. But that hasn't satisfied federal regulators in Congress. They wonder if Clifford and Altman knowingly misrepresented the bank's ownership, or, as some have put it, how could they not have known. Clifford and Altman have not been charged with any wrongdoing by either criminal or civil investigators, but a grand jury in New York has indicted BCCI officials abroad for fraud, theft and money laundering. And the Federal Reserve has fined BCCI $200 million and banned several BCCI officials from future involvement in American banking. Today Clifford and Altman gave their version of events to the House Banking Committee. It was their first public appearance since resigning from First American, apparently under pressure from regulators and the bank's board of directors. Before the two men spoke, they heard from members of the committee, most of whom seemed to have already concluded that Clifford and Altman are guilty.

REP. CHARLES SCHUMER, [D] New York: Mr. Chairman, Mr. Altman and Mr. Clifford are asking us to believe that when their house was on fire, they didn't smell the smoke, feel the heat, or hear the alarms. They claim they were duped. Given the strong indications that federal agencies had as early as 1984 of widespread criminal activity by BCCI, I find it equally difficult to accept that our two witnesses didn't even question the motivation and activities of their business associates. That assumes a high degree of naivete and disinterest. That is out of character with men of such business acumen. Their explanation strains credulity to its breaking point.

REP. TOBY ROTH, [R] Wisconsin: The sum total of this committee's investigation is that you have been in bed with BCCI for at least 10 years. You're telling us all you got was a back rub. You were BCCI's lawyers at the time you were trying to take over First American. BCCI lent you $15 million to buy this bank and later, BCCI bought back the stock, which you already controlled, at an inflated price. No one can believe a story like that. You both made millions in the deal and yet, you tell us you didn't have a clue that BCCI was controlling your bank's stock and you reported to BCCI regularly. It would take a lot of naivete to accept your defense which is, in essence, that you, Clark Clifford, is exactly what you called Ronald Reagan, an amiable dunce, Mr. Clark Clifford, I don't believe that you are an amiable dunce.

MS. WOODRUFF: Clifford shook off the attacks and proceeded finally to give his side of the story, insisting BCCI was not the invisible hand behind First American. He referred to an agreement with Abedi and with Kamal Adam, a Saudi who was the lead investor in First American.

CLARK CLIFFORD, Former Chairman, First American Bankshares: At no time did BCCI did exert any control whatsoever over First American. At no time did they even make an effort to do it, because Abedi and -- and Kamal Adam, who still continued in charge at the proceeding, were the ones who made the agreement with me that I was to have total responsibility and total authority. You have my word for it. I give you my word under oath. At no time did we turn to them for a decision. We were always willing to hear anybody if anyone -- if Abedi had a suggestion, if Kamal Adam had a suggestion, if any shareholder had a suggestion, we were always glad to hear from them.

MS. WOODRUFF: For those who wonder why a successful lawyer in his mid 70s would start a new career in banking, Clifford explained he had no interest in retirement.

CLARK CLIFFORD: I didn't want to retire. I didn't want to just sit on the porch and rock and wait to die. And I said, here's a challenge, this is a real test, wonder if I could do this, I wonder if I could take this obscure company and build it into something important and big and impressive. I went into this with that thought in mind, I'm going to test myself. My judgment is questionable. I guess I should have learned it some way. I've been in this business a long time. It's been a very active life. You learn a good deal from government. I guess I should have some way sensed it. I did not. Others perhaps should have sensed it. I don't know what happened within our government. I read about all that different agencies knew. I know that you, gentlemen, will want to give a lot of attention to that. None of that was ever imparted to us. I'd give a lot if somebody had told me back in 1984 that this operation was the kind that it was. I would have -- I would have given anything if I could have avoided what I've gone through this past year.

MS. WOODRUFF: What Clifford and Altman have been repeatedly criticized for, however, is the $10 million they together made off a stock sale financed by BCCI. Clifford defended the profit as appropriate income for the officers of a successful bank.

MR. CLIFFORD: We had doubled the net profits from the operation. It was then that I mentioned to Abedi and to Nakfe, who knew of my plan all along, that I would like to acquire some stock in my own company. It's so customary in this country for top officials to own stock in their own company; they're given stock options, if you want to attract a top officer, he wouldn't think of coming unless it was going to participate in the stock.

MS. WOODRUFF: Robert Altman, for his part, tried to explain the involvement of BCCI's founder, Mr. Abedi, when bank regulators had been assured that BCCI would have no role at First American.

ROBERT ALTMAN, Former President, First American Bankshares: Mr. Abedi, we were told, had been selected by the shareholders. He was the investment adviser for these shareholders. He was the communications link between us and the shareholders. That is not surprising. A number of wealthy people use investment advisers. This did not come to us as anything unusual.

MS. WOODRUFF: For all of Altman's and Clifford's attempts to explain away their actions, it was clear by the afternoon session, they had persuaded few, if any, committee members. Chairman Henry Gonzalez charged that at the very least, they had used poor judgment.

REP. HENRY GONZALEZ, [D] Texas: I think if there's any conclusion I would draw, it'd be, Mr. Clifford, that in your zeal to accept the challenge and then depart from the traditional profession, you might have forgotten that old law school saying, that the law is a jealous mistress, but so is financing, so is banking, so that in attempting to satisfy that challenge, which I can understand, and particularly as you related it at what point in your life, I can see where judgments could be clouded. Scripture says, "We can't serve two masters well." Much less could we three, four, five or even six. And in the case here of both of you gentlemen, you have worn several hats in your capacity as directors or shareholders or lawyers, attorneys, or chairmen. As an attorney, and director, what happens when the attorney-director's professional judgment conflicts with his own personal business interests? Now, sometimes these things can be so subtle, and I think I detected that, Mr. Clifford, in your testimony, where you felt that it was justified to go and ask for the loan to enable you to buy the stock that you think you were entitled to because you had promoted the interest of the bank so well that it had become so profitable, if I understood the recitation correctly.

MR. ALTMAN: It is true that in connection with our involvement here, we did at times wear different hats. I suppose that is not uncommon, given complicated financial transactions, but we did. We were counsel to the company. We also served in management positions. And what that suggests is that there is a need to be particularly sensitive to any conflicts that may arise. I might say that I am unaware of any conflicts that did arise. At all times we acted in the best interest of First American to protect the interests of that bank and to ensure that it remained a sound institution. We did not shut our eyes or become insensitive to the kinds of issues that are now being explored in these hearings. When we received indications, even though we thought that they were probably unfounded, we investigated them and we pursued them rather vigorously, so I don't think that it would be fair or accurate to suggest that we closed our eyes to these matters. We looked into them. We talked to our shareholders. We talked to the senior management of BCCI. We talked to the counsel representing Mr. Juan, as to his comments. We talked to auditors. At no time did we get any confirmation of these allegations. Everyone we talked to indicated to us that the allegations were untrue.

MS. WOODRUFF: But some members of the banking committee were still skeptical that the two witnesses could have been ignorant of BCCI's controlling role when they worked together so closely.

REP. CARROLL HUBBARD, JR., [D] Kentucky: Many of us find it difficult to believe that the chairman of the board and the president of a major Washington bank, especially men of your stature and reputation in the business world, didn't really know who was controlling your bank. Mr. Altman, there are reports that you regularly submitted financial information to BCCI so that the bank could evaluate First American's condition, is that accurate?

MR. ALTMAN: It is.

REP. HUBBARD: Why did you do that?

MR. ALTMAN: Uh, Mr. Hubbard, when we went through the regulatory proceedings, it was explained to all parties that BCCI had a continuing role. BCCI's continuing role was, as we have described, they were a communications link for us to communicate with the shareholders, given the logistical problems in communicating, people scattered in the Middle East, and secondly, they were the investment adviser. There were other relationships as well that were disclosed. In our Federal Reserve application it specifically says that it's contemplated BCCI is going to continue to provide these services.

REP. HUBBARD: Why would they provide these services?

MR. ALTMAN: In this case, as we --

REP. HUBBARD: As a good friend, or --

MR. ALTMAN: No, sir, in this --

REP. HUBBARD: Or did they have control?

MR. ALTMAN: I'm sorry.

REP. HUBBARD: Was it a friendship relationship, or was it the control of First American that caused them to advise you periodically?

MR. ALTMAN: There was no control relationship, sir. No, that is not what led to our dealings with BCCI.

MS. WOODRUFF: How that squares with Clifford's 1981 assurance that BCCI would have no relationship with First American is not clear. The committee resumes it hearings on Friday with testimony from federal banking regulators. RECAP

MR. MacNeil: Again, the main stories of this Wednesday, Israel released 51 Arab prisoners and the bodies of 9 Muslim guerrillas to advance a broad-based deal for the release of Western hostages in Lebanon. Tonight, a Shiite group in Beirut released a photo of British hostage Jack Mann, with a statement saying Israel's prisoner release had raised hopes of a happy ending for Western hostages. Soviet President Gorbachev said his country will begin withdrawing troops from Cuba. Tonight, Cuba reacted angrily, saying it was not even consulted about the decision. Good night, Jim.

MR. LEHRER: Good night, Robin. We'll see you tomorrow night with more Clarence Thomas hearings, among other things. I'm Jim Lehrer. Thank you and good night.