The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight: The news of this Friday; then, the latest on the involvement of U.S. Marines in several civilian killings in Iraq; a NewsHour report on Mexican President Fox's U.S. tour the week the Senate passed an immigration bill; a taste of the legal arguments triggered by the FBI raid on a congressman's office; and the jointly delivered Iraq messages of President Bush and British Prime Minister Blair; all followed by the analysis of Mark Shields and David Brooks.

NEWS SUMMARY

JIM LEHRER: Military investigators are ready to conclude U.S. Marines committed murder in Iraq. It involves the killings of up to two dozen civilians last November. News accounts today said investigators believe a small number of marines carried out the killings over several hours. A Marine Corps spokesman declined to comment on the investigation today. We'll have more on this story right after the news summary.

Bomb blasts rocked outdoor markets in Baghdad again today. In the first attack, nine Iraqis died, thirty were wounded. The market was packed with shoppers when the bomb went off. The second attack killed as many as ten people.

As the violence continued, the foreign minister of Iran visited Baghdad. He said his government has ruled out direct talks with the United States on Iraq.

MANOUCHEHR MOTTAKI: Unfortunately, the American side tried to use this decision as a propaganda. And they raise some other issues they try to create a negative atmosphere, and that's why the decision which was taken for time being is suspended.

JIM LEHRER: Earlier this year, the U.S. ambassador to Iraq, Zalmay Khalilzad, was authorized to hold talks with Iran, but none ever took place. In another development, Iraqi Prime Minister al-Maliki said he could fill two key cabinet posts this weekend. Shiites and Sunnis have been at odds over who runs the defense and interior ministries.

British Prime Minister Blair called today for more international help in Iraq. He spoke at Georgetown University in Washington, and he said Iraqis are working hard for a new life.

TONY BLAIR: This is a child of democracy, struggling to be born. They and we, the international community are the midwives. You may not agree with the original decision. You may believe mistakes have been made. You may even think how can it be worth the sacrifice. But surely we must all accept this is a genuine attempt to run the race of liberty.

JIM LEHRER: Last night, Blair and President Bush admitted missteps in Iraq at a White House news conference. We'll have more on what they said later in the program tonight.

Violence between Palestinian factions eased some today. The ruling Hamas Party pulled its militia off the streets. The gunmen had clashed with police, who are loyal to President Abbas and his Fatah Party. The two factions also held a second day of talks today. They focused on Abbas' demand that Hamas accept a Palestinian state alongside Israel or put it to a referendum.

ABDALLAH ABDALLAH: In seriousness, in taking the president into account, everybody this morning is saying that it is one, let us work hard to make sure that we reach an agreement that does not make it needed to go to a plebiscite or referendum.

OMAR ABDEL RAZEK: In principle referendums are acceptable and the results will be acceptable. However the problem was, it was understood that the president maybe looked at as a condition or a precondition. This is where the problem came out.

JIM LEHRER: The Palestinian prime minister, a senior Hamas leader, hinted today he opposes the idea of a referendum. But he said he'd discuss it next week with President Abbas. There was chaos at the U.S. Capitol today. A report of gunfire closed the building briefly, and a main House office building was locked down most of the day.

The confusion began with a phone call to police telling of possible shots. They appeared to come from the garage under the Rayburn Office Building. A lengthy search turned up nothing, and later police said it was a false alarm.

SGT. KIMBERLY SCHNEIDER: The explanation is that there was some workers who were working in the area of the Rayburn garage in the elevator area. And in doing their routine duties they made some sort of a noise that sounded like shots fired. So it was a valid call. Unfortunately, it was just a routine duties being performed by some construction workers in the area.

JIM LEHRER: In fact, this was the elevator crew working near where the sounds were heard. They acknowledged they could have started the whole thing.

MAN: It is possible. I have -- I'm loading up metal on to this trailer over here. And when I drive in the garage, the forklift bounces and the metal goes bang, bang, bang. Maybe that's what they heard. Maybe, I don't know

JIM LEHRER: No one was hurt, but one congressional staff member was taken to a hospital after a panic attack. A former aide to Congressman William Jefferson was sentenced to eight years in federal prison today in a bribery scheme. Brett Feffer admitted to brokering an illicit deal with Jefferson. The Louisiana Democrat has not been charged, but last weekend FBI agents searched his Capitol Hill office. Congressional leaders complained the search violated the separation of powers. We'll have more on that story later in the program.

Earlier in the day, the Senate easily confirmed Air Force General Michael Hayden to be director of the CIA. His confirmation was eased after he assured senators he would act independently of the Pentagon. Hayden will succeed outgoing director Porter Goss. His last day was today.

In other action before the holiday recess, the Senate also confirmed Rob Portman as White House budget director; Dirk Kempthorne won approval as secretary of the interior; and White House aide Brett Kavanaugh was confirmed as a federal appeals judge. In a statement, the president called him "brilliant" and "fair-minded." Democrats argued he's a conservative partisan.

On Wall Street today, the Dow Jones Industrial Average gained more than 67 points to close at 11,278. The NASDAQ rose 12 points to close at 2210. For the week, the Dow gained 1 percent. The NASDAQ rose a fraction of 1 percent.

And that's it for the news summary tonight. Now, leading up to the analysis of Shields and Brooks, the latest on the Marine shootings investigation; the Mexican president's immigration visit; the congressman's papers debate; and the Bush-Blair meetings.

FOCUS WHAT HAPPENED IN HADITHA?

JIM LEHRER: Jeffrey Brown has our Marines story.

JEFFREY BROWN: The first public reports of killings of civilians by U.S. Marines came in this video and accompanying story in Time magazine in March.

The images, captured by an Iraqi human rights group, are graphic: Bloodstained rooms, bodies of victims, some wrapped in blankets and rugs, others at the morgue.

The reported killings of as many as two dozen people took place on November 19 in the town of Haditha, an insurgent stronghold 140 miles northwest of Baghdad.

The alleged Marine attack on civilian men, women and children came hours after a roadside bomb ambush killed one of their own, Lance Corporal Miguel Terrazas. His death was noted on the NewsHour honor roll on December 15.

The first official account described civilian deaths from the roadside bombing and an ensuing fire fight between Marines and insurgents. At least two investigations were launched after Time magazine challenged that account. The story gained wider circulation last week.

Democratic Representative John Murtha, a former Marine colonel and decorated Vietnam War veteran, was among a group of senators and congressmen briefed by top Marines on the matter. He discussed some of the findings with reporters.

REP. JOHN MURTHA: It's much worse than reported in Time magazine. There was no firefight. There was no IED that killed these innocent people. Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood. And that's what the report is going to tell.

JEFFREY BROWN: Yesterday, the commandant of the Marine Corps, General Michael Hagee, flew to Iraq to talk to his troops about the appropriate use of force. In a statement issued by his office, Hagee wrote: We do not employ force just for the sake of employing force. We use lethal force only when justified, proportional, and most importantly, lawful.'

And late yesterday at the capitol, after being briefed by top officials, Senate Armed Services Committee Chairman John Warner, a World War II veteran, had this to say:

SEN. JOHN WARNER: Based on, I guess, now well over 30 years of experience with the military, I would rank this as quite serious.

JEFFREY BROWN: Congressional hearings are expected to begin soon.

JEFFREY BROWN: On Wednesday, the U.S. Military announced another criminal investigation. That deals with an April 26 incident in which Marines allegedly killed an Iraqi civilian in Hamandiyah, west of Baghdad.

For more on all this, we go to New York Times Pentagon reporter Eric Schmitt.

Eric, what is known so far of the sequence of events on that November day?

ERIC SCHMITT: Well, what we know to this point is that there was an IED attack that killed the young Marine that you mentioned.

Shortly thereafter it appears that a small group of Marines want looking for the perpetrator of that -- of that attack.

And again, the initial reporting was that they were in a firefight. Those reports have now been discredited. Instead what it sounds like is this small group, and it may be roughly ten or so Marines went at least to two houses looking for possible insurgents, and apparently, again, according to preliminary investigations, shot civilians inside these two homes.

Shortly after the IED attack they also apparently stopped a taxi or car of some sort that approached them and either hauled out of the car or brought out of the car four or five civilians and shot -- who were then shot there too.

Again, this all unfolded when some period of time, approximately three to five hours, we're told, again from the initial reports. So it is not as if this was some sudden reaction to the attack.

This appeared in -- one source told me yesterday -- to be a fairly methodical type of operation that they were conducting.

JEFFREY BROWN: Tell us a little bit more about Haditha the town. This was a very dangerous place for quite a while, right?

ERIC SCHMITT: Right. This is -- this is up in the so-called Sunni triangle' area, again, one of the hot beds of resistance to the American occupation there. And it's been a trouble spot for the Marines in western Iraq for many -- for many months now.

And so this is one of the -- of these areas up there that the Marines have been trying to clear, increasingly, with some Iraqi -- some Iraqi security forces but this has been a problem in many of these smaller villages and towns up in this area of western Iraq.

JEFFREY BROWN: Now the investigations that are under way, my understanding is that one of them is to look at what happened and the other is to look at both what happened and a possible cover-up, is that right?

ERIC SCHMITT: That's correct. There is one that is being conducted by the naval criminal investigative service that is focusing on the events.

What actually happened was apparently this squad of Marines and they apparently are focused on the lead of that squad, a staff sergeant, apparently, whose name has not been revealed who was leading the -- this operation after the IED attack.

One of the interesting things we learned in our investigation so far is that forensic evidence has shown that most of the civilians killed, the two dozen or so, apparently were killed from maybe just a couple of weapons, again, so it focuses on that.

The second investigation is being conducted by an Army general; the Marines basically said to avoid the appearance of investigating ourselves, they're turning it over to a general that's reporting to the second ranking general in Iraq today, General Peter Chiarelli.

And that investigation, we're told, could be completed as soon as next week or shortly thereafter. Again that, as you've said, would look at the potential, was information suppressed up the chain or was it covered up altogether?

JEFFREY BROWN: And is there any information yet about the cover-up, how it might have taken place?

ERIC SCHMITT: No, it's quite -- it's still a lot of unknowns on this one. There have been, there was one lieutenant colonel and two captains who have been relieved of command although the Marines have gone to great lengths to say it is not related to this investigation. although that seems to be clearly something that there is some kind of connection there. All the Marines are saying that it is not.

So it is a question of was this incident not reported, or did these officers know about the information and didn't pass it on to their higher ups, or, as one source told me yesterday, was this, in addition to that, could it have been also what they call command climate? That is, was there such an aggressive climate created in this environment that is very aggressive to go after insurgents, that the officers essentially lost control of their unit, in this case, of some of their enlisted Marines. These are the kind of things that the investigators are looking at. And there are many unknowns at this point.

JEFFREY BROWN: OK. The big question, of course right now is the possibility of murder charges against some of these Marines. What can you tell us about that?

ERIC SCHMITT: Again, from the preliminary investigation, what we heard from both military and congressional sources, if proven to be true, these allegations would suggest that there could be murder charges, premeditated murder charges brought against one or more Marines.

JEFFREY BROWN: Now from the tone of the comments we heard in our setup piece from senators and congressman and from the fact that General Hagee went to Iraq so quickly, clearly people are taking this quite seriously. What are you hearing from the people you talk to about the extent of the concern?

ERIC SCHMITT: I think you hit it just right there. It is extraordinarily a concern when the Marine commandant, himself, is personally briefing members of Congress on the House and Senate side this week, and then taking the step of flying to Iraq to look into this issue himself, and as you said in your report, to state what in terms of state the rule of law and what really the rules are, the Marines abide by.

So this is being taken quite seriously. Obviously the Marines, I think, are looking at this, the lessoned learn from the whole Abu Ghraib scandal in trying to get to the bottom of this as quickly as they can. This also has the attention of not just the Marines, but General John Abizaid, who's the senior commander overall in the Middle East, overall looking in Iraq.

So this has the attention of military officials here in Washington, as well as in Iraq and the region.

JEFFREY BROWN: And what does happen next, any indication of when these investigations would put out their report?

ERIC SCHMITT: Again, we were hearing there could be as early as next week on the Army report that would look at the potential for cover-up. These investigations, however, have a tendency to slip as they have to be reviewed by superior officers. So it could be well into June before we see either the investigation results from the Army investigation or from the naval criminal investigative service investigation.

JEFFREY BROWN: And Eric, there was as we said this completely separate incident from April that was, an investigation was just announced this week. So that, I guess, is just getting under way. What can you tell us about that?

ERIC SCHMITT: Little is known about that right now. It apparently involves just one Iraqi civilian. But clearly this is something that the Marines in this popped up, and was brought to their attention. They are treating this quite seriously as well, recognizing the -- while these incidents are not connected, they are in two different places but the fact that this does involve accusations of shooting of a civilian. They are taking that one quite seriously. Don't know as many details about that yet.

JEFFREY BROWN: All right. Eric Schmitt of the New York Times, thanks very much.

ERIC SCHMITT: You're welcome.

FOCUS U.S. TOUR

JIM LEHRER: Shields and Brooks are coming up, and so are Bush and Blair. But first, the president of Mexico goes North with the immigration issue.

From Yakima, Washington, we have a report from NewsHour correspondent Lee Hochberg of Oregon Public Broadcasting.

LEE HOCHBERG: Never before has a Mexican president come to Washington State or to the small farming town of Yakima in the state's agricultural area. But with the national immigration battle coming to a boil, Mexican President Vicente Fox expanded his planned trade mission to Seattle Wednesday to include a speech to anxious and thrilled farm workers 150 miles away at a Yakima apple orchard. (Cheers and applause) The president greeted his audience yesterday just as the U.S. Senate headed toward yesterday's passage of its immigration bill.

PRESIDENT VICENTE FOX: ( Speaking Spanish)

LEE HOCHBERG: Addressing the audience in Spanish, President Fox, who previously has called the federal proposal for a 370- mile fence on the Mexican border "shameful" and "stupid," said he supported the Senate's guest worker plan. It bill would require the nation's estimated 11 million illegal immigrants to exit the country and apply for reentry as guest workers.

PRESIDENT VICENTE FOX (Translated): We have to match employers with those who want to work. This is a well informed formula.

LEE HOCHBERG: Aaron Ruiz was happy with what he heard.

AARON RUIZ: What I really like is that he worries about people here. He knows how the people work, how the people suffer, how the people leave their lives on the border to get a better chance for their families.

LEE HOCHBERG: Although 8,000 people Yakima, a town of 70,000 recently turned out to push for legalization of undocumented workers, the area is split on the issue. Yakima and the valley surrounding it have long attracted migrant workers, both legal and illegal. But in the last two decades, the percentage of Latinos has doubled to 40 percent, and the area annually draws 25,000 additional migrant workers to harvest its crops. That growth disturbs some who turned out to protest President Fox's visit.

BOB BAKER: He needs to clean up his own act before he comes into our country and tells us how to do our legislation.

WOMAN: That's right, yeah.

LEE HOCHBERG: Bob Baker is part of a group sponsoring a ballot initiative that would ban public aid for illegal immigrants in Washington State.

BOB BAKER: It's not fair to the rest of us taxpayers because we're paying for all these services that they're getting that they shouldn't be.

LEE HOCHBERG: Ruth Drolinger says her children's schools are being devastated by Mexican immigrants.

RUTH DROLINGER: We have got schools that have 80 percent of the school population are Spanish-speaking only, and basically our kids -- their education is compromised. We don't want their culture, we don't want their language. We're Americans.

LEE HOCHBERG: President Fox told his audience that he does not support illegal immigration. He said Mexico must promote economic independence so people won't want to leave.

PRESIDENT VICENTE FOX (Translated): We are working hard to generate employment in Mexico. Believe me, it's the number one priority of my government.

LEE HOCHBERG: But the chairman of the Yakima County Republican Party, John Tierney, argued president fox has failed to eliminate corruption and reform Mexico's economy.

JOHN TIERNEY, Chair, Yakima County Republican Party: What Mexico really needs to do is do things that are going to improve the economy of Mexico so that the jobs are in Mexico and their citizens aren't going to want to leave. If they can get a job in Mexico to make the kind of money they make here, they aren't going to come here.

LEE HOCHBERG: But if they don't come, that would worry Yakima Valley farmer Jim Doornink, who depends on Latinos to pick his cherry crop.

JIM DOORNINK, Farmer: We're in competition with the world, and maybe the choice is we don't do agriculture here anymore. But I don't think that's a good choice.

LEE HOCHBERG: Doornink estimates 60 percent of the more than 200 workers who pick his cherries, peaches, apricots and apples are in Yakima illegally, despite the documentation they've shown him.

JIM DOORNINK: And those people pick my crops, and so if they are not here, I need to have another mechanism to have people come pick my crops. It doesn't seem to be a job that a part of our society wants to do.

LEE HOCHBERG: After his appearance in Yakima, President Fox met with business leaders in Seattle. The president repeated his pledge to create more jobs so fewer Mexicans need to journey to the U.S.

He had he had another promise for Latinos at the Sea Mar community health center in Seattle, which serves many Mexican illegals. He told them they could return to Mexico and receive full health care through a new plan his administration enacted. But Jesus Bustos, who came to the U.S. in 1986 and who wouldn't say if he's legal, said the health plan isn't enough to get him home.

JESUS BUSTOS ( Translated ): No, no, that wouldn't be...

LEE HOCHBERG: Why?

TRANSLATOR: Por que?

JESUS BUSTOS: (Speaking Spanish)

TRANSLATOR: He says that medical insurance is not going to remove his hunger or basically feed his family.

LEE HOCHBERG: President Fox wrapped up his American tour today in California.

FOCUS POWER STRUGGLE

JIM LEHRER: Now, the constitutional debate over a raid on a congressman's office. Ray Suarez has our story.

RAY SUAREZ: The FBI search of Louisiana Democrat William Jefferson's Capitol Hill office last weekend set off a war of words between two branches of government: The legislative, which includes the U.S. House, and the executive, home to the FBI. Jefferson is under investigation for taking bribes in return for promoting business ventures in Nigeria. He quickly condemned the raid, noting he has yet to be indicted.

REP. WILLIAM JEFFERSON: I think it represents an outrageous intrusion into separation of powers between the executive branch and the congressional branch, and no one has seen this in all the time of the life of the Congress.

RAY SUAREZ: Jefferson was backed up by the speaker of the House, Republican Dennis Hastert, and Democratic leader, Nancy Pelosi. In a rare joint statement, the house leaders argued the Justice Department had overstepped its bounds. They wrote: No person is above the law, neither the one being investigated nor those conducting the investigation.'

But Attorney General Alberto Gonzales, who okayed the FBI search, said the move was legal.

ALBERTO GONZALES: We shouldn't lose sight of the fact that the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence where it exists.

RAY SUAREZ: Congressional leaders did not back off.

REP. DENNIS HASTERT: We think those materials ought to be returned. We also think that the... that those people involved in that issue ought to be frozen out of that just for the sake of the constitutional aspect of it.

RAY SUAREZ: Yesterday President Bush entered the fray, ordering his Justice Department to seal the records seized from Jefferson's office for 45 days while the two sides negotiate a compromise.

In a statement, the president said the government has not faced such a dilemma in more than two centuries.

RAY SUAREZ: For two perspectives on the legality of the raid on Capitol Hill, we're joined by Jonathan Turley, a professor at George Washington University School of Law, and Stephen Gillers, a professor at New York University Law School.

And Professor Gillers, let's start with you. Was the search of Congressman Jefferson's Capitol Hill office constitutional?

STEPHEN GILLERS: Absolutely. We should understand what has to be done before there can be a search. First of all, the FBI agents had to swear under oath on penalty of perjury that the facts they were presenting to a federal judge were true. Department of Justice nonpartisan career lawyers had to review those facts. And a federal judge had to look at the facts and decide that they showed substantial reason to conclude that evidence of illegal conduct resided in the congressman's office.

Now Judge Ellis, who signed the warrant, surely understood that the place of the search would be a congressional office. So we have a third branch of government coming in here and it's the federal judiciary which had approved the search. So as far as the Fourth Amendment goes, it appears perfectly legitimate.

As far as the Constitution goes, my copy of the Constitution says nothing about creating search-free zones in congressional offices whether they be on Capitol Hill or in the congressman's district.

RAY SUAREZ: Professor Turley, was the late-night search of William Jefferson's office by the FBI constitutional?

JONATHAN TURLEY: I think it is highly questionable. I would not bet on the government's being able to retain these documents. You know, Article I -- sorry -- Section VI of Article I of the Constitution contains the speech or debate clause. And that has been given a very robust interpretation.

The mere fact that you have the judiciary signing off on a search by the executive branch does not change the equation.

I mean, in the Eastland case by the Supreme Court, the court said look, this clause is designed to keep the other two branches from ganging up on the legislative branch. And, in fact, the Supreme Court said this is to prevent intrusions of those branches into the legislative process.

And we have seen courts in the past quash subpoenas, which are far less intrusive than a physical search of this kind. And we've even seen them throw out indictments because of the speech or debate clause. And so I think there are very significant questions.

What I don't think is a question is that this violates the spirit of the Constitution. I think this is a great offense to a coequal branch.

RAY SUAREZ: Well, let me read the speech and debate clause just so everybody knows what we are talking about. It says: Congress shall in all cases except treason, felony and breach of the peace, be privileged from arrest during the attendance at the session of their respective Houses and in going to and returning from the same.'

And Professor Gillers, does the speech and debate clause apply here?

STEPHEN GILLERS: Well, that's not actually the speech and debate clause. That's a different clause.

The speech and debate clause immunizes members of Congress from having to answer for speech and debate. The Supreme Court has actually interpreted rather narrowly. It has said that the clause does not make legislators, quote, super citizens, closed quote, immune to the ordinary criminal processes that the rest of us are subject to. It said that in the case of Senator Brewster more than 30 years ago.

Nothing here involves speech or debate. Nothing here is integral to the legislative function. This is about substantial reason to believe a crime has been committed. Committing crimes is not speech and debate. And it is not integral to what senators and congressmen do.

JONATHAN TURLEY: I'm afraid I have to disagree. There is no question that immunity does not mean that a member of Congress can start storing corpses like stack wood in his office. I mean, they are not a foreign country. They are not an embassy.

But there is, however, some of these devils in the details. In the past, subpoenas had been used in order to acquire this information. And that, in fact, is viewed as the most acceptable practice.

We're not saying that the speech or debate clause means that you are immune from prosecution or investigation. This is a question of means. And when the professor says, look, nothing here involves any of these speech or debate functions, if you look at what occurred in that office, I don't see how you could reach that conclusion.

RAY SUAREZ: Let me put it to you this way, then. Professor Gillers laid out the process by which FBI agents ended up in William Jefferson's office, getting the warrant, executing all the various checks and balances that are needed to search anyone else's office.

In these cases, are you saying this might be a problem, how should they have gone about this or are you submitting that under no circumstances should the FBI have been in his office?

JONATHAN TURLEY: Well, no, I think that what they should have done is they should have gone through the subpoena process. And if there was a refusal of subpoena they could go to the court to require production. In the meantime, they could have gone to the House and asked that all of this material be put under the control of the House of Representatives. These are things that have happened before. There is a reason why this has never happened in history because it is such a great offense and because there's other alternatives.

Keep in mind they took the man's entire computer hard drive. They took everything this congressman did on that computer. They took massive amounts of information on who he is meeting with -- not just isolated to this one case. These are the types of fruits and instrumentalities that go with a search warrant; that is why it is so inappropriate.

We're not talking about immunity from criminal investigation. We're talking about the means used in that investigation.

RAY SUAREZ: Well, Professor Gillers, how about that, yes, try to get the information but try to get it another way?

STEPHEN GILLERS: I agree as a matter of policy it makes a lot of sense to negotiate the least intrusive means. It doesn't mean you have to as a matter of constitutional law. But as a matter of policy it makes sense.

Now the Department of Justice has said that they did subpoena these files and that they were stonewalled for months.

There is always the risk that they can be destroyed if they continue to wait and work through the processes that Professor Turley identifies. The evidence so far as we've seen it is fairly strong.

Now insofar as seizing the hard drive goes, we have a lot of experience with this because on rare occasion, the bureau will search a lawyer's office. And when you search a lawyer's office you may get a lot of privileged information along with the stuff you are really looking for.

And what the Department has done properly is to utilize screeners people who review the material seized who are not part of the investigation or the prosecution at all, and who identify those files that the judge has identified as subject to appropriate seizure and turned those files only over to the investigating authorities.

RAY SUAREZ: Would you be satisfied with those safeguards?

JONATHAN TURLEY: No, I'm afraid I am not. There is a difference between searching a lawyer's office and searching the office of a coequal branch. And that difference is contained in the first three articles of the Constitution.

The separation of powers really is the thing that brings stability to our system; it is the thing that holds it together, the tension between the three branches.

The legislative branch conducts oversight of the executive branch it is hard to do that if there is a threat that your office can be raided, that your hard drive can be taken. It is a huge cost.

And what I would suggest is that the very fact that they had earlier tried the subpoena and they could then, they should have then gone back to the court and got an order for compliance instead of taking the step, but the fact that there were eight months where this man knew they were going after the stuff in his office, actually reduces the exigency.

It was so unlikely that they were going to be acquiring some significant amount of evidence in this case. There was not the exigency.

And instead they treated this office like any other office, like a lawyer's office. But this wasn't the Bata-Bing Club. This was the legislative branch, a coequal branch that is given special protections under this very important principle of separation of powers.

I would finally note that this president in this sort of overall context that we've seen during these two terms is the most hostile president to the separation of powers I think in the history of this country. From the day he took office, he has had serious problems with the concept of shared authority between the branches. And this, I think, is just the ultimate manifestation of what many of us view as a contempt for the separation of powers.

RAY SUAREZ: Let me get a quick response from you Professor Gillers.

STEPHEN GILLERS: I'm to the going to defend the president's view of separation of powers. But let's be clear. The president did not order the search. Career, nonpartisan lawyers at the Department of Justice were involved in vetting this all along the way.

And remember that the fact that this is the first time it's happened in more than 200 years should be seen as proof that DOJ exercises tremendous self-restraint when members of Congress come under suspicion.

RAY SUAREZ: Are you worried, Professor Turley, that the fruits of this search could end up being ruled ineligible in court? Does this rise to that level?

JONATHAN TURLEY: I think there is going to be a very significant challenge. And I think that we would both agree that there is, indeed, ambiguity here. There is a reason for it.

You know, the speech or debate clause has been left ambiguous by the branches. There has been a sense of self-restraint. And I would suggest the fact that it hasn't occurred in 200 years indicates there has been greater adult supervision at the Department of Justice.

This president hasn't been president for 200 years. He's been president for two terms. And during those two terms he's been repeatedly seen as hostile to the separation of powers.

And yes, there will be a challenge. And I think that they did Congressman Jefferson a great favor by allowing him to wrap himself in Article I and to defend the Constitution when he should be explaining why there is $90,000 in his freezer.

RAY SUAREZ: To be continued. Professor Gillers, Professor Turley, thank you both.

JONATHAN TURLEY: Thank you.

STEPHEN GILLERS: Thank you.

FOCUS SHIELDS AND BROOKS

JIM LEHRER: And now, before we go to Shields and Brooks, Bush and Blair. The president and the prime minister had a joint news conference at the White House last night. A British reporter asked if the leaders had any regrets about the war in Iraq.

JOURNALIST: Mr. President, you spoke about missteps and mistakes in Iraq. Could I ask both of you which missteps and mistakes of your own you most regret?

GEORGE W. BUSH, President of the United States: Saying, "Bring it on," kind of tough talk, you know, that sent the wrong signal to people, that -- I learned some lessons about expressing myself maybe in a little more sophisticated manner, you know, "Wanted dead or alive," that kind of talk.

I think, in certain parts of the world, it was misinterpreted, and so I learned from that. And, you know, I think the biggest mistake that's happened so far, at least from our country's involvement in Iraq, is Abu Ghraib. We've been paying for that for a long period of time.

And unlike Iraq, however, under Saddam, the people who committed those acts were brought to justice; they have been given a fair trial, and tried, and convicted.

TONY BLAIR: I think inevitably some of the things that we thought were going to be the biggest challenge proved not to be, and some of the things we didn't expect to be challenges at all have proved to be immense.

And, you know, I think it's easy to go back over mistakes that we may have made, but the biggest reason why Iraq has been difficult is the determination of our opponents to defeat us. And I don't think we should be surprised at that.

I'm afraid, in the end, we're always going to have to be prepared for the fall of Saddam not to be the rise of democratic Iraq, that it was going to be a more difficult process.

JIM LEHRER: And to syndicated columnist Mark Shields and New York Times columnist David Brooks.

David, let's start with Bush-Blair and work backward, what was their message last night?

DAVID BROOKS: Well, the intended message was that the formation of the government was a fundamental change event. I think one of them said this is what we've been working for, for three years. Now the insurgents are not fighting the U.S., they are fighting a democratically-elected government, albeit partially constructed without some of the security ministries.

But you know, throughout the next day discussion it has all been on what we just saw, the discussion, of the mistakes they made. And the two things that leap out at you are the tone and texture and even rhythms of the president's speech if you counted the pauses between each word and what we just heard the president say different than what we heard two or three years ago.

And this is a word wary president. I mean, I think he has been speaking this way privately for quite a long time. But you began to see a glimmer of the man inside the White House, which he hasn't really allowed, of someone who was aware of what is happening and who is aware of how tough it's been. And how tough it must have been -- must be for him psychologically. And he began to show a glimmer of that.

JIM LEHRER: Mark?

MARK SHIELDS: Jim, ever since we've seen the steady erosion of the popular support for the president's policies, especially his policies in Iraq, we're on the cusp of watching Republicans separate and distance themselves from the administration policies.

Last night I thought we saw the president distancing himself from his policies. I thought that using the language as a mistake, the language he chose, was a pretty hollow answer.

And if he was going to talk about Abu Ghraib, than you could talk about, you know, perhaps some of the torture policies of the administration -- had at least condoned part of that, and the fact that the prosecutions had consisted solely of low ranking enlisted people.

But I did think that David's right about the tone. What struck me was the Tony Blair has been an enormously important ally to the last two American presidents. He is far more popular in the United States than he is in Great Britain.

And George Bush is far less popular in Great Britain than he is in the United States so it is sort of a one-way street. I mean he has been the most loyal supporter. And as I watched it last night I thought Berluscone of Italy is gone. Esnar of Spain is gone. Tony Blair is in the ninth inning of his prime ministership.

JIM LEHRER: Did you see Blair much more subdued than he has been in the past in talking about Iraq?

DAVID BROOKS: I think so. He gave a speech -- I can't remember where it was -- just a couple weeks ago where, which was a very eloquent defense of Iraq. He is not backing down a bit. And he didn't back down a bit in that. And he said it is not a war between civilizations --

JIM LEHRER: And his speech today about Georgetown was not backed down either.

DAVID BROOKS: It is a war of civilizations against evil. And I think, I still think, and this is what I think a lot of people in this country think why he is so popular, he makes the case better than Bush. He talks about the four fundamental moral issue between the selected government and the people they are fighting.

MARK SHIELDS: He made the case for Kosovo better than Clinton. He is a better advocate than either of the last presidents, but especially more so than Bush.

JIM LEHRER: Yeah. Mark, let's go to the FBI raid controversy. Why has Speaker Hastert come out so strong on that? How do you read that? What is going on?

MARK SHIELDS: Well, Jim, you know, this is a Congress that, you know, you wondered what would get them exercised. I mean they -- we have had warrantless wiretaps. We've had total forfeiture, abdication of responsibility of oversight, for Katrina, for prewar intelligence, for lack of postwar planning. They just absolutely submitted to every request and demand for further executive privilege. But boy oh boy, you start messing with --

JIM LEHRER: My office.

MARK SHIELDS: You start messing with my office. I mean these guys, honest to God, they ought to be ashamed of themselves, the Congress. They really should. All you have to know is that the last time we raised the minimum wage in this country was nine years ago to $5.15 an hour. Since then, the Congress has raised its own salary eight times to a total of $31,600. I mean, you know, talk about being out of contact. And I just think, I just think it's absolutely indefensible, I thought outrageous.

JIM LEHRER: You want to pile on, Dave?

DAVID BROOKS: Sure, why not, everybody else is. In the shots earlier today, the joke immediately went around, oh it is just Denny shooting himself in the foot again. Substantively we heard --.

JIM LEHRER: We just heard the argument.

DAVID BROOKS: And Dennis Hastert is right to say listen, they've never done this in 200 odd years. Why do it now? I mean, that is substantive. But politically it's insane. I mean, people are going to think you can commit crimes and the FBI and Justice Department can come into my house but they can't come into your office? No one in the country is going to buy that. And let alone Republicans, they are going to say finally here's a Democratic scandal and Dennis Hastert has turned it into a Republican scandal. This is the one moment where it hasn't been about us.

JIM LEHRER: So why? Why did it happen?

DAVID BROOKS: I think there are a couple of reasons. One, institutional loyalty; I think that's a big thing; two, the natural hostility and maybe extreme hostility that is dealt between the Republicans in Congress and the White House. I mean the relations are not good. And third and this was lurking in the background, is the Abramoff scandal; what investigations are going to be ongoing about that?

JIM LEHRER: And the same guys call the Justice Department --

DAVID BROOKS: So the walls are up.

MARK SHIELDS: What is interesting is there is a certain irony. The FBI was accused of rogue investigations during the Clinton years of Louis Freeh. And to see it happen now, I mean, with Denny Hastert, who has been the stalwart on Capitol Hill as far as the White House is concerned, he has delivered on every important issue to them. The Senate has just gone off the reservation time and time again. But he did break with them on the Dubai ports and on Porter Goss and obviously this time. And I think there is some distancing but I think there is also some fear about the Abramoff investigations.

JIM LEHRER: All right. Keep going, immigration. The Senate passed the bill. Now it has to be reconciled with the House; it is obvious they have a long way to go if they are going to get together. Are they going to do it, David?

DAVID BROOKS: Yeah. I think Mark and I agreed last week that it wasn't likely. I still think that, though I think the argument has been sharpened by the possibility of them going home not achieving anything. If you are in a safe district, you can probably go home and say, I blocked amnesty,' and you'll be a hero, if you go home in most of the country and say, this a big problem, we're not going to do anything now. And if we are not going to do anything now, we are to the going to do anything for ten years, so you have to be stuck with the status quo for ten or five years, whatever it is going to be that not an easy thing to say.

So I think there is going to be some pressure on the House to try to bend. And you began to see some House conservatives --

JIM LEHRER: All the pressure on the House, none on the Senate. The Senate can't move?

DAVID BROOKS: The problem is going to be you start losing Democrats if they move too much, I believe.

JIM LEHRER: And they lose the whole thing.

MARK SHIELDS: I mean, the rule is, and just in a political sense, Dennis Hastert, as speaker, has run the House on you have to have a majority of the majority. He would not bring up any legislation unless a majority of Republicans supported it first. So you could pass this, perhaps, with 100 Republicans and 150 Democrats.

JIM LEHRER: This one.

MARK SHIELDS: This one, but he's not going to do that; he is not going to do it unless there is a majority. If you had that same rule in the Senate, the immigration bill wouldn't have passed because you didn't get a majority of Republicans supporting it. Dave is absolutely right on this.

I think Bob Dole put it well years ago. He said, rather cynically but astutely, no legislator ever got in trouble by voting against something that passed and for something that didn't pass. In other words, you can always say well, I didn't vote for it because I wanted to strengthen it, you know, or I opposed it because it wouldn't -- I think Lindsey Graham, the senator from South Carolina, Republican, has said look, we're responsible. We run the House, we run the Senate, we run the White House. People know if there is no bill it is going to be our fault. But I think right now the prospects for a bill are less than dim.

JIM LEHRER: Do you agree with David that a failure to pass a bill because it got everybody so roused up -- riled up about this is going to be a real problem for anybody -- for everybody?

MARK SHIELDS: I think it becomes a problem for the Republicans.

JIM LEHRER: Only the Republicans.

MARK SHIELDS: Well, I think it's acknowledgment the Republicans are in -- this is the most disciplined I have ever seen the Democrats. All the Democrats will say on the subject is tougher border security. That's all they -- I mean you ask a Democrat, what do you say -- tougher border security. They understand that's their mantra because it is a fight right now between conservative Republicans, the Senate Republicans -- John McCain and George Bush. That is really --

JIM LEHRER: And bush is with the majority here. And -- well, okay, not in the house, but I mean in the --

MARK SHIELDS: Not in the majority of his own party in the Senate either. He doesn't have a majority either.

DAVID BROOKS: But politically I think they are in the worst place possible right now.

JIM LEHRER: They being?

DAVID BROOKS: The Republicans and to a lesser extent the Democrats, the Congress in general, the Republicans in particular because they've poked sticks in every single beehive in the county and they haven't delivered anything. So we are in the middle of it everybody is mad. No one is satisfied.

JIM LEHRER: Mark, the first story tonight, the Marines and the civilian deaths in Iraq -- does this have a ring of everybody says it is a serious, serious matter of another My Lai kind of thing, Abu Ghraib, has this got -- what does your smell tell you?

MARK SHIELDS: People have been talking about it now for weeks. And that I mean just people who care about the Marines, who care about the United States, have all been solemn and sober and serious.

JIM LEHRER: It's gotten worse in the last few days.

MARK SHIELDS: It has gotten worse in the last few days. And I don't think we know the full dimensions of it and don't know until we have hearings. Here is someone like John Warner, a veteran of both World War II and Korea in the Navy and the Marine Corps. So this is serious.

JIM LEHRER: He's a former Marine.

MARK SHIELDS: That's right.

JIM LEHRER: David, what is your read?

DAVID BROOKS: I agree with the seriousness. You look at the video, you read about what happened, and you are stunned, it is an atrocity.

I guess the only political question is: Does it affect the war? Does it affect treatment of the war, public opinion of the war?

On the one hand public opinion is so low, maybe it won't go lower; on the other hand, it is going to be a psychological blow for the country; it already is a psychological blow for the country.

The third hand, which I would argue which is that there are atrocities in many wars, it doesn't necessarily impugn the wars if you were sitting in Dresden in World War II, this was a self-conscious atrocity, almost. Life was pretty rotten there. And that didn't mean we shouldn't be fighting the Nazis.

JIM LEHRER: Finally, David, the Enron verdicts, what is the message beyond the fact that Lay and Skilling were guilty of crimes?

DAVID BROOKS: Well, the message is that we've had a whole series of prosecutions and the penalties get tough. And if you are in Congress or if you are a corporate person fiddling with your books and we have got a new scandal with Fannie Mae, you'd better watch out. And I think the Justice Department has handled itself quite well. We have had WorldCom and this and maybe Fannie Mae. And then the political debate is over Sarbanes Oxley, whether you in addition need the regulations, and that has become a big political debate as business has begun to push back against that.

JIM LEHRER: Sarbanes-Oxley just requires a lot more disclosure on all kinds of very difficult rules, at least difficult from a business point of view around reporting.

DAVID BROOKS: Right.

JIM LEHRER: Where would you put this --

MARK SHIELDS: If we had Sarbanes-Oxley, we wouldn't have this.

JIM LEHRER: It would have prevented this.

MARK SHIELDS: It would have.

JIM LEHRER: That's right.

MARK SHIELDS: And we wouldn't have had Arthur Andersen.

JIM LEHRER: How big a deal is it that Ken Lay and Jeffrey Skilling were found guilty?

MARK SHIELDS: I think you know, as somebody said if they hadn't been found guilty it really would have been enormous -- because of all the countless people they hurt -- and were punished whose lives were permanently damage by these people.

We have never had a shortage sadly in this country of rich, greedy individuals. And these were guys in position of power who could do it. And I have to say watching federal, career, government attorneys go head-to-head with $40 million defense attorneys, these are civil servants.

These are people who make $100,000 a year who coach little league teams whose kids are in public schools; they went toe-to-toe with these guys in the $800 shoes and the $2,000 suits and they kicked their tail and they did justice.

DAVID BROOKS: What struck me was Ken Lay couldn't even fake it on the stand I mean, even though the stand he looked like a jerk. And you can't fake it for a day? So I guess character comes out or something --

JIM LEHRER: Is there a political dimension here?

DAVID BROOKS: Well, I don't particularly think so. I don't think there will be a big political fallout.

MARK SHIELDS: The biggest single benefactors of George W. Bush -- I mean biggest supporters.

JIM LEHRER: But you think he's --

MARK SHIELDS: No, but I think that you know, he was Kenny boy, and then he became somebody who -- Kenny who?

JIM LEHRER: You mentioned Fannie Mae; of course, that's seen by some as a potential Democratic scandal because two of the main leaders, past leaders who started the culture were both Democrats: Jim Johnson and Franklin Raines.

MARK SHIELDS: Boy, you talk about a balanced ticket out there. They have put together at Fannie Mae -- it was Republicans and Democrats and a mix.

DAVID BROOKS: Most people aren't keeping score that way. They are thinking corruption in the capital.

JIM LEHRER: Yeah, it's not Republican or Democrat. Okay, thank you both very much.

RECAP

JIM LEHRER: Again, the major developments of this day: It was widely reported military investigators will conclude U.S. Marines killed up to two dozen Iraqis last November. And the Senate easily confirmed Air Force General Michael Hayden to be director of the CIA. Washington Week can be seen on most PBS stations later this evening. We'll see you online and again here Monday evening. Have a nice Memorial Day weekend. I'm Jim Lehrer. Thank you and good night.