The NewsHour with Jim Lehrer

GWEN IFILL: Good evening. I'm Gwen Ifill. Jim Lehrer is on vacation. On the NewsHour tonight: The news of the day; a look at the EPA's new clean air rules; mixing politics, religion, and public spaces; and a closer look at the red planet.

NEWS SUMMARY

GWEN IFILL: The Bush administration exempted thousands of industrial plants today from installing new air pollution controls. The Environmental Protection Agency the Environmental Protection Agency issued major revisions to its pollution rules. They would allow older power plants, refineries and factories to modernize without having to add expensive emission controls. Industry groups argued the changes would help them save energy, environmentalists said it would create more pollution. We'll have more on this story in just a moment.

The U.S. and North Korea had their first direct contact in four months today. Delegates from the two sides met on the sidelines as six-nation talks opened in Beijing, China. The broader meetings also included China, Russia, South Korea, and Japan. We have a report from Ian Williams of Independent Television News.

IAN WILLIAMS: North Korean officials had resisted this six- way meeting, but they were pressured into coming by the Chinese, who placed the North Korean vice foreign minister smack beside America's James Kelly, before the talks began.

WANG YI (Translated): This meeting follows April talks among the U.S., China and North Korea. We are moving to solve the Korean nuclear issue peacefully.

IAN WILLIAMS: But that was soon followed by a restatement of positions: The Americans insisting Pyongyang could not expect any concessions or aid until after they verifiably scrapped their nuclear program; the North said they had every right to a "powerful deterrent" until America dropped its hostile policies. One official described the atmosphere behind the closed doors as somewhat fragile.

North Korea's state-controlled media avoided any direct reference to the Beijing talks, instead running a lengthy story about alleged American atrocities during the Korean War. "Once again," they said, "America is trying to force us to surrender." Today's talks took place in spite of regional tensions. On Sunday, North Korean journalists attacked South Koreans human rights protesters at university games held in the south.

And yesterday in Japan, authorities briefly detained a North Korean ferry suspected of past involvement in drug- running, spying, and the smuggling of illegal missile parts. And the fact the talks are taking place at all is testament to just how seriously all the regional powers now view the threat to peace.

GWEN IFILL: In Washington, a State Department spokesman said today's discussions were the "beginning of a process," but he would not give details. The Beijing talks are scheduled to run through Friday. Two more U.S. soldiers were killed in ambush attacks in central Iraq today. The military said a third had died from what they called a non-hostile gunshot wound. In all, 281 Americans have been killed in Iraq, more than half since major combat operations ended in May. Nearly 1,400 U.S. troops have been wounded there since March.

In other developments, the U.S. military said a major sweep north of Baghdad had rounded up nearly 400 Iraqis in the last two weeks. And the relief agency OXFAM said it is leaving Iraq because of security risks. Several other international agencies have left since the U.N. Bombing last week. The U.S. postwar administrator now says rebuilding Iraq will require tens of billions of dollars in the next year alone. That's on top of $4 billion a month for military operations. Paul Bremer told the Washington Post that much of the money would have to come from the U.S. He said Iraq's economic needs are, "almost impossible to exaggerate." U.S. and Afghan forces recaptured a key mountain pass today in southeastern Afghanistan. An Afghan official said the fight killed at least a dozen suspected Taliban fighters. Coalition forces mounted an air- and-ground operation in the region following a growing number of Taliban attacks. Palestinian

President Yasser Arafat called today on Palestinian militants to renew a truce with Israel. The Israelis said the statement was meaningless. Hamas and Islamic Jihad abandoned the cease-fire last week after Israeli attacks killed several Hamas members. The Israelis launched the attacks following a suicide bus bombing.

In Chicago today, a gunman killed six coworkers at an auto parts warehouse. He was shot and killed by police during an ensuing gun battle. Investigators said the man was a disgruntled former employee; he was fired six months ago.

NASA will change its way of doing business and fix its broken culture. Administrator Sean O'Keefe made that promise today in response to the final report on the loss of the shuttle "Columbia." Yesterday, an investigating board found the NASA bureaucracy had stifled safety concerns. O'Keefe said his organization is committed to change.

SEAN O'KEEFE: We get it -- clearly got the point. There is just no question that is one of their primary observations that what we need to do and we need to be focused on is to examine those cultural procedures, those systems, the way we do business, the principles and the values that we adhere to as a means to improve and constantly upgrade to focus on safety objectives as well as the larger task before us of exploring and discovering on behalf of the American people.

GWEN IFILL: For now, NASA is planning to resume shuttle flights next spring. The red planet Mars had its closest encounter with Earth today in 60,000 years. The two planets came within 35 million miles of each other early this morning. The Hubble space telescope orbiting earth was able to capture detailed images of Mars during its passage. We'll have more on this later in the program.

A monument of the Ten Commandments was removed from public view today. The two-ton granite marker was wheeled from the rotunda in the Alabama Supreme Court building to a back room. State chief justice Roy Moore installed the monument two years ago, but a federal judge ruled it violated the government ban on promoting religion. We'll have more on this later in the program.

On Wall Street today, the Dow Jones Industrial Average lost more than six points to close below 9334. The NASDAQ rose 11 points to close at 1782.'S it for the news summary tonight. Now it's on to new clean air rules, church and state issues, and closing in on Mars.

FOCUS - CHANGING THE RULES

GWEN IFILL: We begin with today's revision of the EPA'S clean air rules for industrial plants. Betty Ann Bowser provides some background.

BETTY ANN BOWSER: The new rule would allow many of the nations' coal- burning power plants and other industrial facilities to modernize without adding expensive new pollution controls. That's a change in the federal Clean Air Act that had been in effect since 1977. It made anti-pollution devices mandatory any time a plant upgraded.

Now a facility can spend up to 20 percent of total replacement costs without triggering new pollution controls. The new rule would still require plants to reduce levels of sulfur dioxide, nitrogen oxide, and fine particles that pose public health problems.

The EPA has been considering these rules for more than two years to address industry concerns over the confusion of what is considered routine maintenance and what is considered an upgrade. Scott Segal, a lawyer for the power companies, says what was once considered routine maintenance in the 1990s was being viewed as an upgrade.

SCOTT SEGAL: We were able to tell, for example, that changing a section of pipe, putting on a new belt, putting on new propellers on a compressor unit, all were within the definition of routine maintenance. It's kind of like if your car starts losing gasoline mileage and you bring it in for a tune- up, you can tell the difference between doing a tune-up and, say, for example, replacing the engine. This is the distinction that the regulators need to adhere to.

BETTY ANN BOWSER: Environmental critics claim the rule change is a gift to utilities and industry, allowing many of the nations' dirtiest coal-burning power plants and other facilities to release millions of tons of additional pollution into the air.

Richard Blumenthal, Connecticut attorney general, says that would aggravate a continuing public health hazard. He cites an EPA study of Midwestern plants.

RICHARD BLUMENTHAL: This study draws direct links between the air pollution in the Midwest that is blown by the prevailing winds to Connecticut- - nitrogen oxide, sulfa dioxide, causing acid rain, smog-- that not only damages our lakes and rivers and trees, but also causes severe respiratory problems in our citizens and very grave health problems.

BETTY ANN BOWSER: Environmentalists and many state attorneys general are expected to sue the EPA Before this rule could take effect.

GWEN IFILL: Ray Suarez takes it from there.

RAY SUAREZ: Now, a closer look at the EPA'S decision and its potential impact, economically and environmentally. Jeff Holmstead is the EPA's assistant administrator of the office of air and radiation. And John Walke is the director of clean air for the Natural Resources Defense Council, an environmental advocacy group.

Jeff Holmstead, the old rules required that pollution control equipment be installed when modifications were made to the plant. Was that judged not to be working, that rule?

JEFF HOLMSTEAD: A part of that rule wasn't working well. Over the years, a part of that rule had become so cumbersome and difficult that we found... and a number of outside analysts found that it actually discouraged plants from doing projects that would make them more efficient, that would make them more reliable, just because of concern and uncertainty about how this process worked. And so what we've done today is a change that says that if a facility wants to replace a component or a piece of equipment with the same piece of equipment so that the plant remains essentially the same and if it doesn't... if that change doesn't cause an increase in pollution above its permitted levels, then that's allowable without going through this permitting process.

RAY SUAREZ: And what signal, what behavior do you hope to encourage among people who operate these plants with this new set of rules?

JEFF HOLMSTEAD: We hope and expect that it will allow them to undertake projects that they've been putting off that will allow them to become more efficient, that will allow them to become more reliable, and, in some cases, to actually just allow them to become safer places to work. And I should say that we've spent an enormous amount of time looking at this change and can say quite clearly that it won't really have an impact one way or another on emissions. It will just streamline a permitting process that had really become unduly burdensome for many people.

RAY SUAREZ: John Walke, will the new rules do what the EPA Says it will?

JOHN WALKE: EPA says that the new rules will provide certainty to industry. And I agree that the rules will provide certainty that industry will never have to clean up when they increase their pollution. These rules will allow more air pollution that harms Americans, their children and our lakes and country sides from over 17,000 plants nationwide.

They have put forward the argument of efficiency. But what they've tried to avoid talking about is the greater pollution increases that will result. There's a very simple solution. If they say that no more pollution will result, they can simply write into the rule that no more pollution should be allowed to result from their rule changes. The truth is that pollution will go up as a result of these rule changes and the entire purpose of the rule changes are to create an exemption so that industry can pollute more without installing pollution controls.

RAY SUAREZ: How do you respond to industry people who had said that the old rules were a disincentive to change anything? That, in fact, plants were able to run inefficiently and dirtily because doing something to address that would trigger that requirement to reduce emissions?

JOHN WALKE: Here's the most important thing to know about the old rules and the Clean Air Act: If a change at a plant causes pollution to go down, industry doesn't have to adopt control measures. If a change at a plant causes pollution to go up, industry has to adopt control measures. What this exemption does is ensure industry that they do not have to put on controls.

If industry was maintaining their facilities in ways that causes pollution to go down, then they are home free and nothing further has to be done. But if they want to overhaul their plants and make changes at those plants that cause pollution to go up, the public expects that that pollution will be controlled.

RAY SUAREZ: How do you respond to that notion, that by changing the rule in the way it has, the EPA has removed pressure from the plant operators to reduce emissions?

JEFF HOLMSTEAD: Again, it's simply not accurate, and it doesn't really fairly characterize the way our regulations work. This rule change will not really affect emissions in one way or the other. And we've done a fairly extensive study that's been commented on by many people that's available in the public record. But what we also say is that we have all of these facilities that are subject to this rule, that are subject to many other rules. And those rules will continue to reduce pollution throughout the United States, so I can tell you... I can guarantee your listeners that pollution will continue to go down in the country. Air quality will continue to improve, not because of what we're doing today, but because of many other programs that cover these same facilities.

RAY SUAREZ: But wasn't part of the old rule-making meant to prod industry into taking old equipment off-line and replacing it rather than carrying it along and being able to make these repairs that are now possible to keep it online in a way, the same kind of measures that were taken in the '70s and '80s to try to get old cars off the road because they were very polluted?

JEFF HOLMSTEAD: You know, it's interesting -- a number of academic groups and think tanks have looked at this program, and they've said it has precisely the opposite effect. What it says to an old plant is as long as you continue to operate, even if you become less efficient over time, as long as you don't do anything, you can continue to operate indefinitely. If you want to have a new plant, it's subject to very, very stringent controls. So the result of that is many of these plants have a strong incentive to operate longer than they otherwise would have. We've actually proposed legislation to address this problem and to put all of the power industry on a level playing field so that there's no longer any perverse incentive to maintain older plants because they're cheaper to operate, but instead it would put new plants and old plants on a level playing field. We think eventually that's the right result but that requires a legislative change. But what we've done today is to address really a fairly minor part of this program, but to do it in a way that will make plants more efficient, will make them more reliable, but will not increase pollution.

RAY SUAREZ: Let's talk a little bit about the 20 percent threshold, this new rule based on replacement costs. In the case of some plants, we're talking about fairly sizable expenditures that are now allowed without triggering those rules. Don't they make it possible now to keep plants running in a modern world-standard way that perhaps wasn't possible before this new rule?

JOHN WALKE: Well, EPA has adopted a loophole that is so extreme that a company could spend hundreds of millions of dollars rebuilding buildings that are ten to 15 stories high and not put on any pollution controls for the resulting thousands of tons of higher pollution levels. The truth is that despite EPA'S efforts to change the subject to talk about other programs under the Clean Air Act that will rectify the dirtier air that will result from repealing this, it reminds me of someone who has just shot a victim arguing that the paramedics will come on the scene. We want EPA not to shoot the victim, but they've done so.

They have eliminated this clean air protection as a practical matter and pollution will go up as a result of it. We shouldn't look to other programs. We shouldn't look to a legislative proposal that is not going to be adopted by Congress. The EPA simply should not weaken rules that are working to protect the public against harmful air pollution.

RAY SUAREZ: What in the current ruling pushes these plants toward being cleaner? Is there anything in there?

JEFF HOLMSTEAD: Well, that's not what this program was designed to do, and in fact, it can't do that. What it has done is discouraged people from making efficiency improvements. So again all of our studies... John and I talk fairly often and he makes these claims about pollution increasing, and we keep asking for studies and analysis; we've never seen it.

What we've shown is that by making this change, there will be marginal improvements in efficiency over time as plants modernize and upgrade. And we have other tools that Congress has given us to reduce power plant emissions in particular and to make them cleaner. For instance, I can tell anybody who lives on the East Coast will have substantially cleaner air beginning next year because of another program we have in place that will actually require these plants to reduce their emissions.

But the idea somehow that we give them a disincentive to modernize because we say you can't modernize unless you spend a lot of money, what it means is plants haven't modernized over time and they've become less efficient. And so we're trying to rectify that problem and recognizing that we have other tools that have shown themselves to be more effective in reducing pollution. So that's what we've done today.

RAY SUAREZ: Well, you've just heard Jeff Holmstead say that they've removed a burden from industry. He says he believes that it will bring some marginal improvements. What would you have wanted to see? What would the NRDC have wanted to see instead? If you were to work with EPA in designing a new set of regs, a successor set of regulations to the ones that have now been surpassed, what would you have wanted to see?

JOHN WALKE: All it took was a simple statement from EPA that industry can undertake these efficiency improvements and reliability changes and whatever they want to so long as pollution does not go up. They will not do that. I will wager $1,000 here tonight on this show that they will not do that. I will also wager $1,000 that this rule will allow more pollution increases.

Everything that EPA is talking about cannot get away from the reality that this is a new exemption that will allow more air pollution to result from over 17,000 facilities across the country and to allow industry not to put on pollution controls while pollution goes up by tens of thousands and even millions of tons of pollution from these 17,000 facilities.

RAY SUAREZ: The NewsHour, for the record, doesn't encourage games of chance. But if he's looking for wanting to maintain the status quo saying, "yes, make whatever improvements you want but, no new higher levels of pollution," isn't that a reasonable standard?

JEFF HOLMSTEAD: That's effectively what this rule does. John...

RAY SUAREZ: Then why not require it?

JEFF HOLMSTEAD: We have. The rule actually says that you can only make these replacements as long as you stay within your permitted limits. What John says is, "well, sometimes plants emit below their permitted limits," and what that has done over time is create a number of perverse incentives. As long as John is in the wagering business, I'm happy to, you know, see his bet and up him and wager a great deal of money that will not result in emissions increases and in fact air pollution will continue to decrease substantially over the coming years, not because of this change but because this change really is a process change that just makes this one part of the Clean Air Act work better. We have many other parts of the Clean Air Act that are designed to and that, in fact, reduce pollution. And that will continue to happen throughout the country.

RAY SUAREZ: Now, you raised your eyebrows when he said "within permitted limits." Why is that an important phrase?

JOHN WALKE: Well, it's very interesting what Jeff just did. Jeff in a former career was a very sophisticated industry lawyer, and he just resorted to legalese. "Permitted levels" doesn't mean anything to most Americans. This rule will allow more air pollution than we have today. It will allow plants to pollute more than we have today. Jeff didn't deny that. What he said is it will not allow more than permitted levels.

Well, permitted levels is just legalese for levels that are far, far higher than plants are emitting at today. So in that explanation, he essentially acknowledged that plants will be able to emit far more than they are today without cleaning up. That's the purpose....

RAY SUAREZ: Is that right? Is permitted levels more than these plants are currently polluting...

JEFF HOLMSTEAD: In some cases, it is. In some cases it is, but for a number of reasons that we've gone over in great detail and some analysis that we've done, all this does is allow plants to stay essentially the same as they are today but with upgraded and modernized parts, so this doesn't allow anybody to make a change to the plant. It just says, you know, a part wears out, you can replace it with a part that may be better, that gives you a little bit of additional efficiency. That may allow you to produce more widgets or to produce more power. But you still have to live within your permitted limits. And, again that's a level that a state environmental agency has determined is appropriate but as we look across... it's certainly true that in some individual plants we expect that you will see modest increases. I don't know where John's hundreds of thousands and millions and tons number comes from, but at individual plants you may see very small emissions increases. But on an overall basis, pollution will continue to come down and this rule isn't going to change that one way or the other.

RAY SUAREZ: Gentlemen, thank you both.

JEFF HOLMSTEAD: Thank you.

JOHN WALKE: Thank you.

GWEN IFILL: Still to come on the NewsHour tonight, the mix of church and state, and a close encounter with Mars.

FOCUS - CHURCH & STATE

GWEN IFILL: A religious, political, and judicial firestorm came to a head this morning in Alabama.

GWEN IFILL: It took 90 minutes for this moving team to roll the ten commandments monument out of public view at the Montgomery, Alabama judiciary building.

SPOKESMAN: I just want to pray right now.

GWEN IFILL: The reaction outside was instantaneous.

SPOKESMAN: Put it back! Put it back!

GWEN IFILL: Christian protesters, who have gathered at the building for a week, blasted the officials who ordered the removal and the company that executed it.

SPOKESMAN: I think it's the wrong move, and the sound of that will go all over the United States.

GWEN IFILL: Monument supporters

WOMAN: I think it's very sad. It's a tragedy really. They should keep it. There's no reason that it should have to leave.

SPOKESMAN: This is the body of Christ.

GWEN IFILL: Monument supporters say the removal will not end the controversy begun two summers ago. That's when Alabama's chief justice, Roy Moore, installed the 5,300-pound statue in the rotunda. He's defended it ever since.

ROY MOORE: I am recognizing the basis of our morality, which is in God, and indeed the basis of our country, indeed we're a nation founded upon God.

GWEN IFILL: But last year, a federal judge ordered the display removed saying it violates the clause of the First Amendment that states "Congress shall make no law respecting an establishment of religion." The deadline came and went was last week, as Moore refused to comply defying both his colleagues on the court, and Alabama Attorney General Bill Pryor.

BILL PRYOR: No person including the chief justice of Alabama is above the law.

GWEN IFILL: Pryor has his own controversy: He's been nominated to a federal appeals court. But Senate Democrats oppose his confirmation, in part because of his anti-abortion views. Now conservatives are angry at him as well. Moore was suspended from his job Friday, but remains defiant.

ROY MOORE: It's not about a monument. It's not about religion. It's about the acknowledgment of Almighty God.

GROUP: Amen! ( Cheers and applause )

ROY MOORE: We should be offended when elected representatives of this state, the governor, the attorney general, and justices of this court fail to acknowledge god as the basis of our justice system.

( Cheers and applause )

GWEN IFILL: Moore's supporters plan to challenge today's action before the U.S. Supreme Court, the same court that refused to hear an appeal last week.

GWEN IFILL: We pick up the debate now with two of the players. Robert Schenck is president of the national clergy council, and an ordained minister with the Evangelical Church Alliance. He has been fighting the monument's removal. Barry Lynn is the executive director of Americans United for Separation of Church and State, and an ordained minister with the United Church of Christ. His organization sued to have the display removed. Gentlemen, welcome. Rev. Schenck, what is significant about today's action in your opinion?

REV. ROBERT SCHENCK: Well, what's so significant is first ofall what's at question here, and that is a monument and let's keep in mind what this is. It's a privately funded piece of art that acknowledges the supremacy of God over our nation and the very basis of our system of law and justice, right and wrong, our whole concept of morality in this country, and this is a perfectly legal expression. It's no different than our national motto, "in God we trust," no different than our pledge of allegiance, to one nation under God; no different than the supreme court's prayer every time it sits to hear a case when it says "God save the United States and this honorable court." This is just another form of that acknowledgment of God.

So what's so sad here is that we have a court that has begun now the process of eradicating all of those references to God, which poses enormous danger, because it's principles like this that hold not only individuals but governments morally accountable.

GWEN IFILL: Let's take this one piece at a time. Rev. Lynn, what do you see as being significant about what happened today? What do you see about Rev. Schenck's argument that doesn't hold water?

REV. BARRY LYNN: Well, frankly this was a terrific day for two important principles: Number one, religious freedom. That is, the freedom to believe or not to believe even if you're in a religious minority. Judge Moore now suspended Judge Moore in fact had tried to impose his religion on everyone by taking a two-and-a-half ton granite monument and displaying it in a place which one judge said is unmistakable unless you are blindfolded. You literally cannot go into that courthouse and not see it.

The other principle that's important is the rule of law. That is, this judge has, like unfortunately some politicians before him, Bull Conner, George Wallace as governor of the same state, he had defied federal court orders to remove this monument. Now today it is gone. The light at the end of the tunnel after all was shining in fact on a sign that said you shall remove this monument.

Now, what Rev. Schenck says about the foundations of this country almost are completely wrong. That is to say the Constitution of the United States is not based on the Ten Commandments. At least four -- in many versions five of the Ten Commandments are explicitly religious. They have got nothing to do with the secular law. They have issues to do with how many Gods there are, should we make graven images, what day should be the Sabbath. These are very contentious religious issues but they are not the foundation stones of the American legal system.

And, finally, his argument about, well, there are some other examples of art in other places. There is nothing, for example, in the United States Supreme Court that remotely looks like this two-and-a-half ton granite monument. There's a small decorative painting that features Moses, the law giver, along with a couple of Roman emperors, Hamarabi and others.

This is not a historical documentation. This was an effort by one judge to be above the law and to take this monument in public space and impose it on everyone in the courthouse, whether they liked it or not. Our clients in this case were people with different religious backgrounds from atheism to Catholicism to the Baptist faith. They disagreed with the premise that they should be made to feel like second-class citizens practicing in a courtroom where one man had tyrannical control over what was going to be displayed.

In fact he went so far, Gwen, as to refuse civil rights leaders the right to put up another monument in the same rotunda that simply featured the "I Have a Dream" speech by Martin Luther King.

GWEN IFILL: Well, let's try to stay on this topic of the proper role of government and religion. And help me understand, Rev. Schenck, why this is about more than a statue or a display in the lobby of a courthouse in Alabama. Why is this a bigger issue?

REV. ROBERT SCHENCK: Well, first because the declaration of independence says that our rights, which are secured by the Constitution, come from our Creator, with a capital C -- a personal Creator. And all the Ten Commandments do is simply explain who that Creator is and what the nature of that Creator is. And it's critically important that we remember that in doing so, in referencing the Creator, what our founders did was they reminded us that we are accountable to a higher moral authority than ourselves.

In other words, we're not the ultimate arbiters of right and wrong. If the majority in this country decide that murder is okay, it doesn't make murder okay. That's an immutable law that constrains both individuals and governments. And that's why this is so much larger than just this piece of artwork.

GWEN IFILL: Explain to me why does the existence of this statue, this display, this 5300-pound monument, why does its presence there or its absence there have anything to do with whether people believe murder is wrong, whether people believe religion is right? What is the connection?

REV. ROBERT SCHENCK: Well, because if you follow the legal arguments and the philosophical arguments that have been used to remove this monument, then you must also go after our national motto, you must also go after every expression of our acknowledgment of God in our culture.

And once we do that, we become a radically secularist humanistic society which can make its own rules for right and wrong. And if Barry Lynn thinks something is right and he can get enough people on his side, then that will be the law. But if somebody else does, then that will be the law. That is a very scary specter for our society.

GWEN IFILL: Let's allow rev. Lynn to respond.

REV. BARRY LYNN: Frankly, what this judge has done is exactly what Rob is talking about. He has made a law unto himself. He has said look if federal courts order me to take this out and I don't agree with those federal courts-- by the way two courts have now agreed with our clients in this position as have the eight members of -- the other eight members of the Alabama Supreme Court-- that this monument indeed needed to be removed.

This is not a statement about removing all reference to religion from the American cultural life. In fact we have a vital religion and religious life in this country in no small measure because government doesn't play favorites. It doesn't pick and choose what is the best religion, the right religion. It allows literally thousands of religions to flourish along with tens of millions of non-believers who choose no spiritual path but who are still part and parcel of the American experience. The acknowledgment....

GWEN IFILL: Rev. Lynn, let me jump in and ask you then. Why is it that if this constitutional reference which is appropriate to this discussion is about the establishment of religion and this display simply sits there, it's not establishing religion, it's not creating a law, what is wrong? What is it about the presence of this statute, this display that takes anything away from anybody?

REV. BARRY LYNN: Well, it's an overwhelming addition to that building. It is something that makes it crystal clear that there is one and only one religion that is practiced by the person who put this in, that is, the chief justice of the United States -- excuse me of the Alabama Supreme Court.

It basically makes everyone else who does not share that religion feel like a second class citizen in the one place where religion must be irrelevant and that is in the halls of justice. It does not prevent the judge from acknowledging his faith.

And, in fact, if this monument were not in a public building but were on his front lawn and some bureaucrat tried to take it away, I'd be down there with Mr. Schenck supporting his right to keep it up. No one is questioning the faith, the commitment of Judge Moore. What we are questioning is his right to use the power of the state to impose his religion on others.

He has tried it, as I said, courts now, two federal courts as well as of all of his colleagues on the Alabama Supreme Court said take it out. It was taken out today. It should not be viewed as a disgrace; it should not be viewed as anti-religious. It should simply be viewed as upholding the rule of law that the Constitution of the United States does matter and what judges say it means matter even to elected politicians in Alabama.

GWEN IFILL: Rev. Schenck, at a time when there were so many people who agree with you politically and your beliefs, religiously, starting from the White House all the way down to the governorship and the state house in Alabama, with those people in power, why do you find that you are fighting this battle now? Do you think that there is some larger cultural war that's at stake?

REV. ROBERT SCHENCK: Oh, absolutely. I think that there is a cultural elite that is largely reflected in the federal judiciary in this country that has a bias against religious expression in the public places. But I'll take a minute just to correct Mr. Lynn because the eight associate justices of the court, in fact, do not disagree with Chief Justice Moore. And they said so yesterday in their response to our federal case on behalf of our clients or our plaintiffs on our side when they said that we believe that the Ten Commandments and the acknowledgment of God is perfectly constitutional and should be allowed notwithstanding that-- and I'm paraphrasing just slightly-- they still feel constrained to obey the federal order.

But it was certainly contradictory to the federal order. They were saying we agree that this is constitutional and that the acknowledgment of God is allowed on behalf of public officials so, in fact, they agree with Chief Justice Moore. What they're saying is but we feel bound by a federal court ruling that, in fact, violates our beliefs on this point.

REV. BARRY LYNN: Gwen, what they feel constrained to do is to obey the system of law that we have in the country. We don't have religious courts in this country. We have secular ones. That's why, of course, the Constitution doesn't mention God even though the Declaration of Independence mentions God four times.

When we created the constitution we created a secular system of government to protect the rights even of minorities including religious minorities in this country. There is no war against Christianity or against religion in this country. There is no cultural elite that's stopping, for example, any one of the three hundred and fifty churches in the proximity of that courthouse in Alabama from displaying the Ten Commandments.

Indeed, I have been urging Rev. Schenck and his colleagues instead of continuing to protest and argue about this, help remove that monument in a reverential fashion and place it in a place where it belongs like a church lawn or a church building nearby.

There's no war against religious broadcasters. They're all over the air waves. There is absolutely nothing that constrains this judge from practicing his faith independently, honestly and in a spirited fashion. He just can't do it in the middle of a courthouse which he seems to consider or seemed to consider before he was suspended his private property.

GWEN IFILL: Rev. Schenck, there has been some discussion about appealing this again or even further to the U.S. Supreme court which refused to take this case last week. What reason do you have to believe that they would take it now?

REV. ROBERT SCHENCK: Actually that's not true. What they refused was an appeal on a stay of the order to remove. But they have not yet even entertained the petition for certiorari or for review. So we don't know whether they will accept that or not. It hasn't even been filed as far as I know yet.

GWEN IFILL: Barry Lynn, what's your take on what the Supreme Court --

REV. BARRY LYNN: I don't want to get into making bets because I don't think Rev. Schenck and I do that. But the point is the United States Supreme Court will not hear this case. And the reason is that this judge, Judge Moore, has basically said federal courts have no jurisdiction over me and I'm not going to listen to them unless they say what I want them to say.

He has come up with such a contempt for the idea of the federal judiciary that I think it would be preposterous with those unclean hands of his for him to expect the United States Supreme Court to hear his case on the merits. That's not the way you approach the Supreme Court.

When Judge Moore, when all is said and done, he's going to be on the wrong side of history; he's not going to be on the side of justice, he's not going to be on the side of the integrity of the Constitution. He seems to repudiate it. Frankly, it's even worse because this judge at the trial, when asked about other religions, Hinduism, he said he wasn't even sure that was a religion. He has such a limited view and willingness to accept the diversity that is this country, he's forgotten the first national monument... motto which was not "in God we trust." It was e pluribus, Unum" -- out of many one. In other words, there is a tremendous diversity of faith in this country --

REV. ROBERT SCHENCK: Mr. Lynn, would you give me just a little time.

REV. BARRY LYNN: And Rev. Schenck may not like it and the judge may not like it but sit a part and parcel of the America many of us revere.

GWEN IFILL: We're going to go to Rev. Schenck.

Go ahead.

REV. ROBERT SCHENCK: Mr. Lynn now I know you are a Democrat because you do an excellent job of filibustering. One point is the reason that the Ten Commandments were selected for this monument is because, in fact, they do not divide us. They unite us. Jews, Christians, Muslims all revere them equally. Virtually all of the other Earth's major religions endorse them as beneficial for society.

There are even some well-known atheists who are on record saying there's nothing wrong with the Ten Commandments. And sometimes we portray other religious minorities as very narrow and very biased. It's not true. They are generous. They are ... they absorb the best of other religions. And certainly that's true of the Ten Commandments. So these are not divisive. And I have yet to find one person who says they're offended by them except the three lawyers that brought this case.

REV. BARRY LYNN: Well, you know, I mean that just trivializes this so much because you know that although you might have the majority vote, that is in the state of Alabama at least, I think 70 percent of the people wanted those monuments to stay, but we don't just take plebiscites. We don't have electoral votes on which part the Bill of Rights are going to be applied to the states.

And your position ultimately boils down in case after case to the Bill of Rights doesn't apply to the state of Alabama. And that is an absolutely repudiated idea. It's been repudiated now for the last fifty to seventy-five years.

REV. ROBERT SCHENCK: You misunderstand the argument.

REV. BARRY LYNN: And you're simply not going to prevail in this argument.

REV. ROBERT SCHENCK: Mr. Lynn, you misunderstand the argument.

GWEN IFILL: Let me step in and ask Rev. Schenck: How long do you plan to remain, you and your supporters plan to remain on the steps of the courthouse in this protest? Can you stay there indefinitely?

REV. ROBERT SCHENCK: Well, there are waves of people coming in, new arrivals from Alaska, from all points in the United States just today, more and more Alabamians, more and more residents of Montgomery coming out, James Dobson, one of the most respected and admired religious leaders in this country is coming tomorrow for a noon rally on the courthouse steps.

There are other luminaries that are promising to come in. We expect them any day. So we're taking it each day by day. I thought I'd be here for a day. I've been here over a week. Well I think I may stay a little longer.

GWEN IFILL: Briefly, Rev. Lynn, if you can tell us whether you think this is the end or the beginning of this debate.

REV. BARRY LYNN: I really think effectively this is the end of the debate. Mainstream conservatives, all the way up to the President of the United States, have certainly not gotten involved in this fight in any direct way, nor will they because in their heart of hearts they know the same thing I suspect Rev. Schenck knows, that the rule of law does matter -- that even if you have a deep religious motivation, it doesn't allow you to trump the rights of other people; it never has. And our Constitution was never designed to do just that.

I know Rev. Schenck keeps calling for people to come to Alabama. The biggest rally they had had approximately the same number of people that come to the average Alabama high school football game. This has simply not turned into what he wanted, the showdown in the cultural war for the soul of America as Pat Buchanan once put it.

This is all about the rule of law and respect for diversity. That's what won today. That's why this was an important day and I think will continue to be looked upon as an important one.

GWEN IFILL: And you will have to have the last word, Rev. Lynn. Thank you both very much for joining us.

FOCUS - CLOSE ENCOUNTER

GWEN IFILL: Finally tonight, looking at Mars and to Terence Smith.

TERENCE SMITH: Today, Mars made its closest pass to Earth in nearly 60,000 years, giving people a chance to get their best look at the red planet. Normally Mars is about 140 million miles away from Earth . But today, it orbited a mere 34 million miles away. In countries around the world, people flocked to telescopes to catch a glimpse of the tiny ball in the sky. And today NASA released images taken by its Hubble telescope providing the most detailed look.

For more on this special moment and our continuing fascination with Mars, I'm joined by Neil DeGrasse Tyson, an astrophysicist and the director of the Hayden planetarium at the American Museum of Natural History.

Mr. Tyson, welcome. Is this a scientific event, a media event, a big party. What is it?

NEIL DE GRASSE TYSON: It's a little of all of the above but it's primarily a media event and a big party, because every couple of years, every 26 months, Earth and Mars are on the same side of the Sun when you combine what their orbits are doing in the ballet of the solar system.

About every fifteen or seventeen years it's at about this distance from us. So to make a big deal over this as a record, yes, it's because we like records, but I'll give you an example -- 79 years ago in 1924 Mars was almost as close as it is today and yet no one is reflecting back on that time. And it's almost like me taking a few steps to my left, entering New Jersey here from Manhattan and saying, you know, I've never been this close to Japan before. Yes, technically I'm close to Japan but that difference is not much compared to how often Mars has been close.

TERENCE SMITH: How close is close? I mean relate it in terms of distance to the moon, to the other planets.

NEIL DE GRASSE TYSON: Well, Moon is only 240,000 miles away. Mars this morning was 34 million miles. Now, that's a long way.

And, by the way, had we never been there, we could view this as a special moment for never having seen it this close. But of course we've landed on Mars before. We've got spaceships going to Mars now that are about to deploy rovers. So to gather around and look at the Hubble picture and say, wow, look how close Mars is, I'm waiting for the rovers to land to get an even closer view.

TERENCE SMITH: In fact, you have, do you, a meteorite with you?

NEIL DE GRASSE TYSON: Oh, yeah.

TERENCE SMITH: From mars.

NEIL DE GRASSE TYSON: From the meteorite collection of the American Museum of Natural History I'd like to thank my colleague who is our meteorite curator for supplying this for me for this interview. This is a Martian meteorite; this was a rock that was minding its own business on the Martian surface when a larger meteorite struck thrusting this up to escape velocity, having it enter inter-planetary space wandering not quite aimlessly but in response to gravity of other planets it landed on Earth .

And, in fact, it was seen to hit in Egypt in 1911. We know it's from Mars because you can analyze trapped gases within it and it matches bang on to the gases of the Martian atmosphere. This rock, what makes it kind of interesting is, in fact, very interesting, is it's a reminder that planets are not isolated orbs in the solar system. There's communication between planets by this very process.

And we happen to know that there are some kinds of bacteria that can survive trips through inter-planetary space. So if any of these rocks had a crevice in it and if Mars once had life which we strongly believe, then you could have stow-away bacteria coming from Mars to Earth . It may be that all Earth lings are descendents of Martians, Martian bacteria that is.

TERENCE SMITH: There are all sorts of things I want to ask you about here. Those who go out tonight or in the next few nights and they look up without a telescope, with naked eye, what are they going to see?

NEIL DE GRASSE TYSON: Well, by the way it's not only tonight. Just to set the record straight -- the moment when we were closest to Mars was Wednesday morning, this morning, at 5:51 Eastern Time, but Mars, these days, are close enough so if you missed it tonight because it was cloudy or you fell asleep, it's not as though there's not going to be another chance. You have weeks to do this.

Mars rises at sunset and sets at sunrise. So it's ideally positioned for anybody to see it, no matter your work schedule. And all you have to do is look towards the Southeast after sunset. There will be this glowing thing, it will be the brightest thing in the sky. Mars right now is the third brightest thing in the sky after the Sun and the Moon. So you'll have no excuse if you can't find it.

I worry that maybe you've never looked up before. A lot of city people have never looked up. So it's a challenge to city people to move out from behind buildings get a view of the eastern horizon in the evening. And you'll see a glowing orb there, an object, that once you confirm it's not a plane coming in for a landing that's going to be Mars. It will have this amber reddish hue to it.

TERENCE SMITH: I went out last night and, in fact, looked, saw it immediately last night. No question -- the brightest light in the southeastern sky. But it was at least to my eye white, not red.

NEIL DE GRASSE TYSON: Well, the problem is the cones in your retina require a higher threshold of light to start triggering color so the best way to see color is to get an inexpensive pair of binoculars, spend $50 or $60 on a pair of binoculars - you could use it for sporting events the next day. Look at Mars through those binoculars and the color will become that much more apparent to you. Even with a simple telescope you'll get the color for free but you'll also notice among... at the poles of Mars you get icecaps and so it's a reminder that Mars goes through seasons just like Earth .

TERENCE SMITH: You know, we've been fascinated, we Earth lings have been fascinated with Mars for a long time. Why?

NEIL DE GRASSE TYSON: I could name a hundred reasons. Let me start with the top three. First it rotates in 24 hours just like Earth , 24 hours 30 something minutes. Its axis is tilted just like Earth . It has polar icecaps like Earth . It has seasons like Earth . It has a record of there once having been liquid water moving on its surface. There are meandering river beds, dry today but nonetheless meandering river beds, river deltas, flood plains.

There is no doubt that Mars was once an owe oasis but it isn't today and nobody knows why. We're worried about that because we don't know what we're doing to our own Earth that might end up having all the water go away. So the more we study Mars not only is it fascinating in its own right it will surely give us clues as to what knobs we are inadvertently turning on Earth that could have a dramatic effect of the future of life on this planet.

TERENCE SMITH: Is it your belief that there was life on Mars if there is not life there now?

NEIL DE GRASSE TYSON: Every place we look on Earth where there's liquid water there's life. You know, it's the old pond drop under the microscope experiment. It's teaming with life. In fact, the one who invented the microscope called those little animals.

And so it's tantalizing to suggest that wherever you might find liquid water in the solar system you would have life. And so that is driving our interest in this planet. By the way, we're not the first generation to have this interest.

Percival Lowe, 100 years ago, was fascinated by Mars, so fascinated that it kind of affected his brain and he started inventing things that he believed he saw. He imagined colonies and civilizations and cities and canals; it's the origin of the canal myth on Mars. And then Orson Wells and H.G. Wells wrote the story, Orson Wells personified it on the radio program where they re-enacted an invasion by evil aliens from Mars. So Mars has been in our literature, it's been in our fears, and today it's on our frontier of science.

TERENCE SMITH: Very briefly, if you will, what do you expect to learn from these missions that are en route to Mars? What are you going to learn and when?

NEIL DE GRASSE TYSON: It's almost like Earth attacks with this flotilla of probes en route to Mars. Right now -- in the old days you would just sort of land on Mars and look around and take pictures.

Now we're very sophisticated with miniaturization of electronics. There are rovers that will now go out, go up and cut into rocks, and with a microscope take a look at the freshly exposed surface deep within and analyze it for its composition, its chemical composition, its mineral composition. There's a camera that will get a panoramic view that will be beamed back here to Earth so that we can all be vicarious explorers through the eyes of these rovers.

So science in this modern age has become democratized in a way that we can all sort of participate on that frontier of discovery right there with those who are conducting the mission themselves.

TERENCE SMITH: Neal DeGrasse Tyson, thanks so much for telling us about it.

NEIL DE GRASSE TYSON: A pleasure.

RECAP

GWEN IFILL: Again, the major developments of the day. The Bush administration exempted older industrial plants from installing new air pollution controls. U.S. and North Korean delegates met privately as six nation talks began on North Korea's nuclear program. And two more U.S. soldiers were killed in Iraq. We'll see you online, and again here tomorrow evening. I'm Gwen Ifill. Thank you and good night.