The NewsHour with Jim Lehrer

ELIZABETH FARNSWORTH: Good evening. I'm Elizabeth Farnsworth. Jim Lehrer is away. On the NewsHour tonight an update from the big Microsoft anti-trust trial; a look at the arrest of Chile's General Pinochet in London; talk show lawyers, how much do they really know; and an Anne Taylor Fleming essay about aging baby boomers. It all follows our summary of the news this Monday.% ? NEWS SUMMARY

ELIZABETH FARNSWORTH: The Justice Department's anti-trust suit against Microsoft went to trial in federal court today in Washington. Government lawyers showed videotape of their pre-trial deposition with Chairman Bill Gates. The government lawyers said Microsoft memos contradicted the deposition. The government lawyers are arguing that Gates was behind an effort to illegally divide the market for Internet search software. The suit alleges Microsoft used such unfair business practices to stamp out rivals. The company denied wrongdoing, claiming it was trying to be competitive in a fierce market. We'll have more on this story right after the News Summary. Middle East peace negotiations were complicated today by a terrorist attack in Israel. It occurred in the town of Beersheba 50 miles from Jerusalem. The Palestinian man was arrested for tossing two hand grenades into a crowd at a bus stop. Sixty-four people were hurt, three critically. At the talks in Y Mills, Maryland, the Israelis then refused to negotiate further with the Palestinians, except on security matters. Palestinian Leader Arafat extended his regrets to Prime Minister Netanyahu, but Israeli Ambassador to the United Nations Dore Gold said the incident proved the Palestinians must come up with security guarantees for Israel.

DORE GOLD: Right now we are focusing our efforts in today's talks on the security issue. But obviously we're not going to sit here forever in the Y plantation trying to work this out. We need to have real progress and security. The prime minister will not take any actions that would put the people of Israel at risk.

ELIZABETH FARNSWORTH: Arafat and Netanyahu issued a joint statement this afternoon pledging to fight terrorism and intensify their efforts to reach a peace agreement. President Clinton said he would push both sides to make hard decisions. He spoke to reporters this afternoon before returning to the talks.

PRESIDENT CLINTON: Ultimately, only the parties themselves can bridge their differences and put their people on a more hopeful course. The issues are difficult. The distrust is deep. The going has been tough. But the parties must consider the consequences of failure and also the benefits of progress.

ELIZABETH FARNSWORTH: A White House spokesman said the President began a three-way meeting with Arafat and Netanyahu tonight. No one would predict how much longer the talks would go. The participants have been sequestered since Friday. Also today, it was learned that President Clinton refused to settle the Paula Jones sexual harassment case for $2 million. White House Spokesman Joe Lockart confirmed a Washington Post report that the President's lawyer rejected the offer from Jones's attorneys. In exchange, she was to agree to drop her suit against him. Lawyers for Jones and the President are set to argue tomorrow before a federal appeals court in Minnesota. The three-judge panel will decide whether to reinstate the Jones case, which was thrown out by Federal Judge Susan Weber Wright last April. The U.S. Supreme Court rejected another challenge today to the military's "don't ask, don't tell" policy on homosexuality. The case was brought by a gay aviator, who was discharged from the Navy after he talked on television in 1992 about his sexual orientation. It was the fourth time the justices have turned away plaintiffs contesting the armed services practice. The court has yet to rule definitively on the policy's constitutionality. Floodwaters continued to rise today in Central and Southeastern Texas. Severe rain and tornadoes killed at least 14 people in weekend storms. Three children are still missing. In San Antonio, rain drenched the area, causing rivers and creeks to wash away cars and mobile homes. Residents spent the day sifting through destruction and debris, searching for personal belongings. The former military ruler of Chile vowed today to fight Spain's attempt to extradite him from Britain. Augusta Pinochet faces charges in Spain of genocide, torture, and terrorism. British authorities arrested him Friday as he recovered from back surgery at a private hospital in London. Chile has formally opposed the request for extradition, claiming the 82-year-old general and senator has diplomatic immunity. His British lawyer had this to say.

MICHAEL CAPLAN, Lawyer for Pinochet: In recent years General Pinochet has traveled without hindrance to the United Kingdom on several occasions with the approval of Her Majesty's government. Any attempt to extradite him from the United Kingdom will be resolutely opposed.

ELIZABETH FARNSWORTH: Two Spanish judges are investigating the deaths of Spaniards and others in Chile during Pinochet's 17-year reign. We'll have more on this story later in the program. It was estimated today that as many as 500 people were killed in an explosion and fire in Southern Nigeria near the city of Lagos. Vandals siphoning gasoline from a state-owned pipeline Saturday night apparently set off the blast. As many as 1,000 men, women, and children were lined up to steal fuel at the time. The fire raged for 24 hours and spread to nearby villages and farms, claiming a number of victims who were sleeping. In Kosovo today United Nations investigators were looking into reports Serb tanks were headed for an ethnic Albanian encampment in the Western part of the province. The Serbs said police officers were killed in that area over the weekend, victims of a rebel attack. Serbia has until next week to withdraw more of its troops from Kosovo or face NATO air strikes. And that's it for the News Summary tonight. Now it's on to the United States Vs. Microsoft, a Spanish judge versus Chile's General Pinochet, talk show lawyers, and an Anne Taylor Fleming essay.% ? FOCUS - ANTITRUST BATTLE

ELIZABETH FARNSWORTH: Phil Ponce has the Microsoft story.

PHIL PONCE: The case against Microsoft, the world's largest software company, can get very technical, but it boils down to a simple charge: that Microsoft has become a monopoly that uses its dominance to illegally stifle competition and innovation. The case revolves around Microsoft's control of the so-called operating system, the basic software that acts as the brains of today's computers. More than 90 percent of computers today use Microsoft's Windows operating system. The Justice Department alleges that Microsoft tried to use that dominance to gain control over the market for so-called browsers, the software that connects users to the Internet. The Justice Department's case accuses Microsoft of acting illegally by attempting to tie its Internet Explorer browser to Windows, thereby fighting unfairly with its main competitor in the browser business, Netscape; making Internet companies, such as America OnLine, distribute Microsoft's browser in order to get promotional space in Windows; prohibiting computer makers from modifying the first screen a user sees after turning on his or her computer; and pushing programmers not to use a version of the Java programming language created by rival Sun Microsystems. Assistant Attorney General Joel Klein announced the case last May.

JOEL KLEIN: Let me be absolutely clear. Nothing we are doing here will or should prevent Microsoft from innovating or competing on the merits. What cannot be tolerated and what the antitrust laws forbid is the barrage of illegal, anti-competitive practices that Microsoft uses to destroy its rivals and to avoid competition on the merits. That, and that alone, is what this lawsuit is all about.

PHIL PONCE: The government is focusing on a 1995 meeting at which Microsoft officials allegedly offered to divide up the browser market with its chief competitor, Netscape. Microsoft has repeatedly denied any illegal acts, saying that in the competitive computer world it has offered customers more services and better prices. Microsoft attorney William Neukom spoke outside the courtroom in Washington this morning.

WILLIAM NEUKOM, Microsoft General Counsel: The software industry itself is intensely innovative and competitive. Every year, there are thousands of new products brought to market; there are thousands of new companies that are being formed; and the benefit of that competition and that ability to innovate means better and better technology, quicker and quicker to market, at lower and lower prices.

PHIL PONCE: Joining us now is Susan Garland, who's covering the trial for BusinessWeek as its Washington legal affairs correspondent.Welcome, Susan.

SUSAN GARLAND, BusinessWeek: Thank you.

PHIL PONCE: First of all, before we get into some of the specifics of the case - and you were in court today hearing the opening arguments-why should people on Main Street care about this case? What is at stake?

SUSAN GARLAND: Well, this is really a battle over who is going to be controlling the Internet and computer technology into the 21st century. That's no small matter because computers and technology and the Internet will be so much a part of our lives, we'll be conducting billions and billions of dollars of commerce on the Internet over the next 100 years perhaps. The Justice Department is basically saying do we want one company to have that - too much control over so much of our lives, because Microsoft right now has a big stake in a lot of different technologies, and the Justice Department is saying, that right now, Microsoft is stifling innovation and competition, and prohibiting other, better products from coming out. Microsoft is saying no, if you - if you harm us - if you stop us, you're actually going to be hurting the economy, because we are fueling so much of what's good in the economy right now.

PHIL PONCE: You were at court todayand the Justice Department made its opening statement, so what points did they make today?

SUSAN GARLAND: Well, they went back to the - to bare basics, and let me just step back for a second. Microsoft controls the operating system, which is the sort of connective tissue of the - of the computer, and -

PHIL PONCE: The Windows system.

SUSAN GARLAND: The Windows operating system and application writers write to specific operating systems. They can write to the Windows system or to Mac's Apple system, and what Justice is saying is that - and they had about 90 percent of these - of the operating system - the market out there -

PHIL PONCE: So there are other companies out there that are making software that is compatible.

SUSAN GARLAND: Except most applications are written to Windows because Windows has the most customers and it has the most customers because most applications are all written to Windows. What happened back in around 1995 was that Microsoft saw a big threat to its core business, which was a browser, the Netscape browser, and this thing called the Java programming language, and the two of them together had the potential of basically eroding Microsoft's core business, because rather than have an application writer write to Windows, they could write basically one size fits all, write to - they could - with the browser in the Java they could write to one application would fit on any operating system -

PHIL PONCE: And completely skirt Windows - you wouldn't need Microsoft.

SUSAN GARLAND: You wouldn't need Microsoft; you wouldn't need Windows - you wouldn't need Mac. You could use any - and so what the Justice Department is saying is that Microsoft went to Netscape and said, we have a deal for you - how about - we're starting our Internet browser products too, why don't you folks take the non-Windows window operating systems - we'll take the Windows Operating System - and we'll give you something else - we'll go invest in your company, and of course, Netscape said, why would we do that, we have a big share of the browser market right now? They didn't go along, and the Justice Department said that at that point just - Microsoft went out to try to kill off Netscape.

PHIL PONCE: So tomorrow, Microsoft - it's Microsoft's turn. What is Microsoft expected to do - to argue?

SUSAN GARLAND: Well, Microsoft - it was very interesting. Today there was a lot of E-mail that came in that showed how Microsoft's intent to go and sort of cut off Netscape's air - air supply. Microsoft is basically going to argue that we put out great products; if Netscape is doing poorly now, it's because they don't have a good enough product; that we don't even have a monopoly, even though they have 90 percent of the market right now. They are claiming we don't even have a monopoly because the computer technology area is very dynamic. All you need is a computer and you know how - you know - just knowing how to operate it and you could sort of - it's not like steel or oil where you need to build big buildings, you just - you know - anybody could topple us at any time, and they're going to say that there are still many ways for Netscape to get out there, that we did not do anything to foreclose the distribution.

PHIL PONCE: So they're saying that their competitors can still operate in the free market, notwithstanding any allegations about what Microsoft has done. What does the government want Microsoft to do?

SUSAN GARLAND: Well, at this point they're being mum on their remedies. They had - when they first filed their complaint, they wanted Microsoft to carry Netscape on its operating system basically, asking one company to carry its competitor's products on the screen.

PHIL PONCE: So the screen pops up-you can either use the Microsoft product, or the Netscape product, even though Netscape is a competitor.

SUSAN GARLAND: And Microsoft didn't buy that, so right now, what the Justice Department has done is broadened their case. This is not just a browser case anymore. They're saying that Microsoft went out and with a number of companies - Apple, Intel - American OnLine - engaged in a number of anti-competitive acts to try to kill off some other competing technologies too.

PHIL PONCE: Again, this is the Justice Department's -

SUSAN GARLAND: This is the Justice Department's side.

PHIL PONCE: Their allegations.

SUSAN GARLAND: And so even though Justice is denying at this point, you never know, they may seek the break-up of the company if they win this case.

PHIL PONCE: The actual break-up of Microsoft along the lines of what - what happened to the Baby Bells in '84?

SUSAN GARLAND: This remedy - possible remedy is a work in progress, but there's some talk and speculation of requiring them to perhaps divest some of their technologies.

PHIL PONCE: And as far as the trial is concerned, how long is it expected to be? How much testimony? Is Gates going to show up?

SUSAN GARLAND: Well, Gates actually is not going to be a witness, although he did make a sort of cameo appearance today of Justice Department - showed about 2 minutes of his 20 hours of depositions back in August, and there was - it was sort of the - the highlight of the day was very dramatic because you basically had Bill Gates denying that he really knew anything about this Netscape market collusion meeting, and after their - Gates basically denied that he knew about it - or had any idea of what was going on in it - David Boise, the trial counsel for the Justice Department, then, you know, in a sort of dramatic flourish almost, presented a whole bunch of E-mail and internal documents from Microsoft from before the meeting and after the meeting showing that, in fact, he not only knew about the meeting but encouraged certain - encouraged the supposed - some offers to Netscape.

PHIL PONCE: Well, presumably, Microsoft will be putting their foot in there, giving it their perspective tomorrow, starting tomorrow. Susan Garland, thank you so much for being with us.

SUSAN GARLAND: Thank you.

ELIZABETH FARNSWORTH: And still to come on the NewsHour tonight, the arrest of Chile's General Pinochet, talk show lawyers, and aging baby boomers.% ? FOCUS - PURSUING PAST

ELIZABETH FARNSWORTH: Now the arrest of a controversial Chilean leader. We start with some background from Charles Krause.

CHARLES KRAUSE: Arrested Friday in London, Chile's former president, General Augusto Pinochet, is a larger-than-life figure who's played a key role in shaping Latin America's recent economic and political history. Dour and ramrod straight, it was Pinochet who led the bloody 1973 coup that overthrew Chile's democratically elected government, led by socialist president Salvador Allende. Today, Pinochet is revered by the right for restoring order to Chile and for introducing free market capitalism to a country that had nationalized much of its economy by the time Pinochet seized power. Most development economists said the free market plan would never work. Yet in recent years Chile has become one of the world's fastest- growing economies -- a model for developing countries from Latin America to Eastern Europe and even the former Soviet Union itself.But to restore order after the coup and later to eliminate resistance to the new economic program, Pinochet presided over a regime that was notoriously brutal in pursuit of its opponents and its ideological enemies. Once in power, Pinochet used state terror in ways that had never been seen before in Latin America, ordering the arrest, torture and execution of more than 3,000 suspected leftists. Many of them were kidnapped, never to be seen again, and became known as "desapparicidos"---the disappeared. Today, there's a memorial to them and to the others who died after the coup at Santiago's general cemetery. Under Pinochet, Chile also entered into an agreement with military governments in neighboring countries to kidnap and kill suspected leftists. The agreement was code-named "Operation Condor." As knowledge of the human rights situation became widely known, Pinochet and his government became pariahs in the eyes of most of the international community. But Pinochet retained a strong grip on Chile itself until 1988. It was then that he lost a plebiscite which would have allowed him to remain in power as Chile's president for another eight years. Ultimately, he recognized and accepted the vote, and voluntarily turned over power to a democratically elected civilian government in 1990. But before leaving, he arranged for an amnesty to pardon all human rights abuses committed by the military -- including himself -- during the so-called years of emergency. And, after giving up the presidency, he remained commander in chief of Chile's armed forces until earlier this year, when he became a senator-for-life. Britain is one of the few countries in the world that would grant Pinochet a visa, so it was no accident that he was at a medical clinic in London recovering from an operation when he was arrested. British police acted at the behest of a Spanish judge in Madrid named Baltasar Garzon. The judge is investigating the disappearances of Spanish citizens -- and the thousands of others -- killed in Chile after the coup.Last week, Garzon issued an arrest warrant for Pinochet -- requesting that Britain extradite the 82-year-old general to be questioned for what the judge called "crimes of genocide and terrorism including murder."Stunned by the arrest, Chile's government has demanded that Pinochet be freed, arguing that the general has diplomatic immunity because he was traveling on a diplomatic passport. But Britain has apparently rejected that argument although a final decision on the extradition request has not yet been made by Britain's home secretary, Jack Straw.

ELIZABETH FARNSWORTH: For more now we are joined by Arturo Valenzuela, director of the Center for Latin American Studies at Georgetown University. He has written several books on Chile and served in the State Department in the first Clinton term; and Ruth Wedgewood, international law professor at Yale University, and a senior fellow at the Council on Foreign Relations. Thank you for being with you us.Mr. Valenzuela, how was the arrest being received in Chile, first by the government?

ARTURO VALENZUELA, Georgetown University: Well, this is a political earthquake in Chile, and the government is very nervous about it, because what you need to understand is that Chile in transition has been an elaborately crafted set of compromises, the most important compromise of which was that Pinochet status, commander of the army, and now is senator for life, and so he is immune from any kind of prosecution in Chile. This was part of the deal that the Chilean Democrats had to put together with theoutgoing military government in order to be able to come into power.

ELIZABETH FARNSWORTH: And this throws a monkey wrench in it?

ARTURO VALENZUELA: And throws a monkey wrench completely, and this is why the government is really quite nervous about it, doesn't want this to affect its delicate balance internally, and it wants, therefore, Pinochet not to be prosecuted outside of Chile.

ELIZABETH FARNSWORTH: What about other political forces?

ARTURO VALENZUELA: Well, other political forces, of course, are reacting differently. The left in Chile is applauding this particular event, because they see this as a vindication for their position, and they would like to have this man tried for the violations of human rights that occurred in his regime. Now, the current government is a center left government. It's a very complicated center left government, and this could, of course, jeopardize the unity of that center left government. As the left says, bravo, we're happy with the Spanish judge's action and we hope Pinochet will be tried abroad because he wasn't able to be tried here, and the right says, oh my gosh, you can't do that, he saved Chile from Communism and, therefore, we really must stand by him. So there's a real tension in Chile.

ELIZABETH FARNSWORTH: And you've written about this. How does the public come down? What do you know about that would a poll show?

ARTURO VALENZUELA: Well, Chile is a very divided country and remains so, and in some ways this transition has papered over some of the wounds of the past that haven't really been fully come to grips with. And one third of the country is probably very much against the military government. One third of the country thinks the military government saved Chile, and then the other third is sort of in the middle, so I would think that there's a very strong segment of the country that would like to see him tried and an equally strong segment of the country that would like to see him exonerated, of course, of any action.

ELIZABETH FARNSWORTH: Ruth Wedgewood, explain the legal aspects of this. We got some of this in Charles's report, but let's go into some more depth. First, why Spain?

RUTH WEDGEWOOD, Council on Foreign Relations: Well, Spain is a particularly cogent actor here, because some of the victims of the terror and torture that Pinochet carried out were Spanish nationals or held dual Spanish citizenship.

ELIZABETH FARNSWORTH: And what are the - what's the law under which this is being done, this European convention on terrorism? Explain that.

RUTH WEDGEWOOD: Sure. Well, Spain says it has a right to charge Pinochet for the murder of these Spanish nationals because it has a right to protect its own citizens, the right that we in the U.S. claim for our own citizens as well from time to time. And England says that obligation is as a member of the European Union, European Community to render unto another member of the European Community, criminals who have fled abroad, and Pinochet is wanted in Spain, so the UK has the obligation to surrender him to Spain.

ELIZABETH FARNSWORTH: Why is Spain - the judges are bringing the case because of the Spaniards, but they're also bringing that case on behalf of the thousands of other people killed too, right? How does that work?

RUTH WEDGEWOOD: They have alternative ways to justify what they're doing. First is again the right to protect their own citizens. The second is the idea of universal jurisdiction that genocide or terrorism or torture are such horrendous crimes that any other country, Germany, a country that has no citizens at all, has the right potentially to try those cases as well. And what's controversial here, I suppose, is that indeed, as other guests said, the Chilean democratic government thought it had to make a compromise in order to have a transition of power, and here you have a foreign government disregarding the compromise.

ELIZABETH FARNSWORTH: Okay. I'm going to come back to that in a minute, but first, has this law, has the International Convention on Terrorism or the European convention ever been used in this way? Has it ever been a head of state, taken, arrested in this way?

RUTH WEDGEWOOD: This three-way ricochet, I don't believe so, no.

ELIZABETH FARNSWORTH: Mr. Valenzuela, has anybody been prosecuted in Chile for any crimes that took place --

ARTURO VALENZUELA: Yes.

ELIZABETH FARNSWORTH: -- like the ones the Spaniards are -

ARTURO VALENZUELA: There have been some prosecutions in Chile but most of the criminal abuses of power - of human rights violations - were exempted by a 1978 amnesty law. The amnesty law exempted a few people from prosecution and in fact today in Chile the head of the secret police, the former secret police, General Contreras, is in prison for human rights abuses. But most cases have been thrown out by the courts precisely because of the amnesty law that Pinochet had established before he left office.

ELIZABETH FARNSWORTH: So this is really a very important development in Chile?

ARTURO VALENZUELA: I think it sets really a new precedent, but here we have a tension between international human rights law for one - on the one hand - and human rights conventions, and the national law of a country.

ELIZABETH FARNSWORTH: Ms. Wedgewood, give us some idea of how this evolved in international law. This is something that didn't just happen, right?

RUTH WEDGEWOOD: Well, it's been a long steady development, if you like. When Nuremberg said that there are crimes against humanity that can be tried by international tribunals, the Geneva Conventions that were created in 1949 after the war, established the idea of universal jurisdiction for war crimes in international wars. What's new is applying this to civil wars, to civil conflicts, and there there has been a gradual evolution -- in the negotiations for the Rome criminal court, which just took place this past summer, for example, you had the idea of taking jurisdiction even over state nationals where their own state had not signed up to be a member of the court. You have the Rwanda tribunal, the Yugoslavian tribunal established by the UN Security Council to cover civil conflicts as well. So the idea that you have to have some kind of international venue to remedy grotesque crimes against humane standards has been, I think, developing quite productively and rapidly the last decade.

ELIZABETH FARNSWORTH: But it could mean that any person from any country who was a head of state that some other country considered did something that was against these laws that have to do with terrorism could be tried in any country, people might be afraid to travel, right, heads of state, or secretaries of state, or ministers of whatever?

RUTH WEDGEWOOD: Well, the worry is you point out, I think, that in not respecting local amnesty is that it may throw off the very delicate political balance that you needed to get the colonels back into their barracks, and the strong argument can be made that in general if local liberal democratic regimes in a transition think they need to promise amnesty and simply rely upon the Truth Commission or up on the judgment of history in order to work the situation out, that one should, in general, defer to their judgment. But here again where the Spanish nationals - Spain has its own independent interest - I think it's the strongest kind of facts that a Chilean government cannot willy nilly torture Spanish citizens.

ELIZABETH FARNSWORTH: And Mr. Valenzuela, what's the U.S. government's role in this? I know the Spanish government has asked the U.S. government for information that the CIA or FBI might have gathered about crimes under the Pinochet era.

ARTURO VALENZUELA: Well, the U.S. government actually has been providing information to the Spanish courts on this issue, as they have also been providing some information to Argentine courts that have been looking into this, but this is more of a judicial process. So far, the official position of the U.S. government is that this, in fact, is a judicial issue, and they have not taken any official stance on it.

ELIZABETH FARNSWORTH: What do you think the wider implications of this are for Latin America as a whole? There are former dictators from Guatemala to Argentina in Latin America.

ARTURO VALENZUELA: Well, see, this, again, is this delicate balance that sometimes you have to turn the page and you have to sort of say we have to put behind us the horrors of the past. Most countries like Chile have tried to do this by looking to find the truth, but not necessarily to find full justice. That is, they have to sort of turn the eye away from prosecution of those who were involved in criminal kinds of procedures, and I'm afraid that this may be what's necessary from a realist's point of view. On the other hand, I do sympathize and do understand the position of those who lost loved ones and who think - and this is a legitimate concern - that there are some cries - cries of genocide or of torture or of terrorism - that are so heinous that we need to have some kind of international system, international convention, to be able to go after those crimes, even when national legislatures or judicial systems aren't capable of doing so.

ELIZABETH FARNSWORTH: Ruth Wedgewood, what are the options available to the British, to Britain now?

RUTH WEDGEWOOD: Well, the Brits have been asked to surrender Pinochet to the Spanish, as you know. This is a two-part procedure. The courts will look at it first to see if there's probable cause to believe that Pinochet committed these crimes. I suspect the case there is very strong, and then the home secretary of Britain, Jack Straw, also has the option of denying extradition if he chooses to on political or other unspoken grounds. There also actually is a kind of backlash in Spain, itself, where the government has questioned the judgment of the magistrate, so you may see the Chilean government trying to exercise pressure both on the British directly and through the Spanish government as well. But one thing I wanted to point out, though. If you're talking about the policy issues involved, you do want to have the ability to have international autocrats, travel internationally, if it's necessary to make peace to go into peace negotiations, either of the parties in the Palestinian/Israeli peace process not wanting any liability abroad, but at the same time, Pinochet is functionally retired. It was only medical treatment. It didn't inhibit any kind of ongoing negotiation. His claim to diplomatic immunity is not well founded. So I think in this case it's a very strong set of facts on which to proceed.

ELIZABETH FARNSWORTH: Well, thank you both very much.% ? FOCUS - TALKING LAW

ELIZABETH FARNSWORTH: Now, legal pundits in the age of Monica Lewinsky. Media Correspondent Terence Smith has that story.

WENDY MURPHY, MSNBC Legal Analyst: In terms of what's in the text of the Constitution --

TERENCE SMITH: Whether it's the Constitution -

WENDY MURPHY: -- if you go through the articles of impeachment in Watergate -

TERENCE SMITH: -- impeachment -

SPOKESMAN: -- perjury -

TERENCE SMITH: -- or fine points of the law, Americans can now tune in any hour of any day to get the latest legal semantics, spin, and speculation on the Lewinsky saga. Last week, when Congress voted to authorize impeachment hearings, the airwaves were wall-to-wall with legal pundits - enough for former federal prosecutors, legal analysts, and defense attorneys to fill a small law school.

SPOKESMAN: And, Cynthia Alksne, how many Democrats defect - as the expression is tonight?

CYNTHIA ALKSNE: A big stack of them.

TERENCE SMITH: It's nothing new, of course. The TV lawyer phenomenon exploded with the O.J. Simpson case and was multiplied by the proliferation of 24-hour news networks. Simpson dream team members like Johnny Cochran now have their own TV shows. Former prosecutor Marcia Clark is a frequent understudy for Geraldo Rivera. Defense Attorney Barry Scheck went on to MSNBC as a commentator. The Simpson trial also spawned "Burden of Proof" on CNN with hosts Greta Van Susteren and Roger Cossack. The show airs twice a day and has a whole gaggle of barristers parsing the law. But the Lewinsky scandal has wrought a new chapter with a new cast of characters, among them Attorney Barbara Olson, here arriving for an appearance on CNBC's "Hard Ball" with Chris Mathews. Olson was a federal prosecutor in the U.S. Attorney's Office in the District of Columbia for three years. A self-described conservative and close friend of Kenneth Starr, Olson quit her job as chief counsel for Republican Senator Don Nickles to hit the pundit circuit full-time.

BARBARA OLSON: I kept watching all of these people who were former federal prosecutors talking about the independent counsel investigation. And basically their statements were that this was outrageous and that Ken Starr was taking actions that no prosecutor had ever taken in the history of mankind. And it just wasn't true. And I knew it wasn't true, and I thought, you know, it's one thing to have a political agenda, but they're all being subtitled, former federal prosecutor. And I thought, well, I want to say, here's another viewpoint.

TERENCE SMITH: On "Hard Ball" that night there was no reference to her political leanings or friendship with Ken Starr. Olson was identified as a former federal prosecutor and founder of the Independent Women's Forum. But Olson says she often sets the record straight herself.

BARBARA OLSON: When I'm asked a question about Ken Starr, I will quite often preface it with, "I'm a friend of his."

TERENCE SMITH: Olson has tried 48 cases to verdict. Most were drug busts and other drug-related crimes in the District of Columbia. These days she's a paid legal analyst for NBC, who will sometimes put in a full day doing commentary on MSNBC. Often, she's pitted against lawyers from the other side of the political fence.

SPOKESPERSON: Here to talk about it, MSNB legal analyst Barbara Olson, who was a former - was a federal prosecutor, and she's also a founding member of the Independent Women's Forum; MSNBC legal analyst Cynthia Alksne was also a federal prosecutor, now has ties to the Democrats. So we know what team everybody's on.

CYNTHIA ALKSNE: Not just now, baby, since birth!

TERENCE SMITH: Alksne also admits she is generally pro-Clinton. She too is a paid legal analyst who appears regularly on MSNBC. When the pundits pontificate, it can range from the informative to the very personal.

CYNTHIA ALKSNE: I don't like Ken Starr. I don't like him one stinking bit. I think he's terrible for prosecutors everywhere.

TERENCE SMITH: And on certain shows, the sparring can escalate.

SPOKESMAN: There are shows that see themselves as primarily entertainment shows, that try to stage food fights for the public because that's entertaining to watch and good for ratings.

TERENCE SMITH: Criminal defense attorney Brad Berenson is a self-proclaimed member of the chattering class. His courtroom experience is modest. He's tried a total of two cases to verdict in five years of defending white collar crime cases. He describes himself as a conservative and sympathetic to Starr but says he's usually identified as a criminal law expert.BRAD BERENSON: Virtually everyone commenting on this subject has a point of view or an orientation, so I really don't think there's a very significant disclosure or non-disclosure issue that arises with this.

TERENCE SMITH: Berenson is also a member of the conservative Federalist Society, along with Ken Starr. Among the other familiar faces, husband and wife team Joseph DiGenova and Victoria Toensing. Both are high profile Republican lawyers. They're also paid consultants to NBC News. Recently, they served as co-counsels for a House committee investigating Teamster Union campaign contributions to the Democrats. They have both appeared here on the NewsHour. As befits a growth industry, there is even a web page that purports to help people link the faces with the backgrounds. The Viewer's Guide to Talk News describes itself as "the who's who among talking heads in the Starr vs. Clinton Trial by Media. " Perhaps revealing its own bias, the page identifies many of the conservative commentators as "stealth spokesmen for Starr."

TERENCE SMITH: Now joining us are four lawyer pundits. Roger Cossack is a legal analyst for CNN and co-host of "Burden of Proof." He's been both a prosecutor and defense counsel. Barry Scheck defended O.J. Simpson and is a professor at Benjamin Cardozo Law School. Last April he drafted an ethical guidance for lawyers doing media commentary. Ann Coulter is a legal analyst and author of "High Crimes and Misdemeanors, the Case Against Bill Clinton." Paul Campos is director of the Byron White Center for Constitutional Study at the University of Colorado. He's author of "Jurismania, the Madness of American Law."

TERENCE SMITH: Paul Campos, let me begin with you. You have criticized legal commentary as a sort of rhetorical gamesmanship that, in your view, injures the public debate. What do you mean by that?

PAUL CAMPOS: Well, I think the Clinton saga is a prime example of what I'm talking about in that regard. If we look at the media, it's saturated with lawyers, we have nothing but lawyers on TV, it seems these days, in the role of news commentators. And many aspects of the Clinton business, in fact, the most important aspects, have almost nothing to do with anything that lawyers have any particular technical expertise regarding. For example, the question of whether President Clinton should be impeached is essentially a purely political question to which lawyers bring almost no special kind of knowledge. And for lawyers and law professors to be the people who are constantly asked, should Congress impeach President Clinton is I think very similar to asking lawyers constantly, should Congress declare war, which is another very important constitutional function that the Congress has and which is another thing that I would think obviously lawyers have no particular expertise or knowledge about.

TERENCE SMITH: All right. Ann Coulter, let me ask you, when you appear on television, are you providing legal analysis or political commentary?

ANN COULTER: Legal analysis. I disagree with Mr. Campos on whether this is a legal question, what a high crime and misdemeanor is. It's just decided by a tribunal other than the Supreme Court. But that doesn't mean that it's not a legal issue. Congress decides, but there are standards. There are precedents. I mean, Paul is correct in this sense, and I think some of the legal commentary does verge off in this direction of discussing a high crime as if it's a criminal offense. It's not a criminal offense. But there are standards. There are precedents. It goes back 600 years. And the same way lawyers can interpret things like what cruel and unusual punishment is, what the First Amendment means. It's a legal question in the Constitution, and there are precedents.

TERENCE SMITH: Barry Scheck, when you wrote the ethical guidelines for criminal defense lawyers appearing on television, doing this sort of media commentary, what was the problem you were trying to solve? Why was there a need for it?

BARRY SCHECK: Well, emerged very quickly when this whole group of pundits came on television, when you're actually the subject of news and you're trying these cases is the first thing your realize is that most of the people on television really haven't watched the testimony from the day before, haven't reviewed the transcripts, and many of them weren't even particularly expert in the areas where they are being asked to comment. And it drove everybody crazy that actually is the subject of the trial, so we thought first a fundamental one is be competent in the area that you're supposed to be commenting on. Secondly, it is actually when you become one of these very difficult - as in your set-up piece was revealed by Mr. Berenson and others - to keep your composure and dignity and really get a good point across because you are forced into a situation where you're in a food fight, the producers pick people who they know they are going to disagree, they provide very little time for thoughtful comment, they don't provide an atmosphere, frankly, where thoughtful debate can take place, and so it doesn't.

TERENCE SMITH: Roger Cossack, you actually wear two hats here - in a sense that you're host of a show and invite lawyers on and, of course, do legal analysis, yourself. You frequently identify guests on your broadcasts simply as a former federal prosecutor. Is that giving the viewer enough information?

ROGER COSSACK: Well, it is giving the viewer enough information if that's all they are in terms of what their background is and we're bringing them on to talk about a specific thing a former federal prosecutor should know about. But oftentimes, we will have people on our air who are former federal prosecutors and have political connections. That may be that they're a former federal prosecutor and were perhaps counsel to the Republican or the Democratic National Committee, or served in some political capacity. When that happens, what we try and do at all times is to give two titles, so that people will know, yes, it's a former federal prosecutor, there's an expertise in criminal law, but, look, it's a political leaning also.

TERENCE SMITH: Ann Coulter, you have acknowledged that you heard some of the Linda Tripp tapes before Ken Starr did. That would suggest you're wired into one side of that story more than the other, as your book title would, I would submit. How should you be fairly described?

ANN COULTER: I think that's incorrect - what you just said. I'm a journalist as well, and I have a lot of sources on a lot of things. I mean, unless you're going to say that "Newsweek" Magazine and Kathryn Graham are wired into a particular side, I happen to have heard the same tape they heard. So, no, I wasn't getting it from, you know, Ken Starr's office. I'm a journalist, as well as a practicing lawyer, and I'd like to say I totally, totally agree with what Barry just said. I really think that is the main problem with legal commentary. I think it has nothing to do with how people are identified. I mean, it seems to me if you're being paid by a particular outfit, whether it's the Democratic Party, the tobacco companies, the anti-tobacco companies, if you're being paid to take a particular position, I think that should come out. But to try to guess, well, this person is a Republican, well, you know, maybe this person -- that is to say me - is in favor of the President's impeachment based on my reading of the law and 600 years of history on the Constitutional Convention. You're sort of putting the cart before the horse here.

TERENCE SMITH: You mentioned pay, so let me ask you - how often are you paid for the legal analysis, and what is that pay for?

ANN COULTER: What do you mean, on TV?

TERENCE SMITH: Yes.

ANN COULTER: I am paid about as much as I'm paid to come on this program. [laughing]

TERENCE SMITH: But you have been paid, in fact?

ANN COULTER: No. There are a few TV shows out there -- you missed by point. If you're being paid by the tobacco industry and you're on TV discussing tobacco legislation, or tobacco laws, or the tobacco lawsuit, I think it would be a relevant piece of information. And that doesn't go just for lawyers. That goes for any kind of pundit. I see Kissinger all the time, you know, on TV, giving his opinion as a foreign policy expert without explaining which countries are paying him. I'm not saying he's not being honest or lawyers aren't being honest. In fact, I think some lawyers - I mean, this is what lawyers do for a living. We're hired by clients, and we argue a particular point. What I am more concerned with than who's paying the lawyer, though I think that should come out, or who someone voted for in the last election, is what Barry's saying, and that is whether they know what the law is. Barry was saying, you know, they haven't read the testimony that day. Half the time they haven't read the U.S. Code. They don't know what the law is. I don't talk about subjects I don't know about. And it seems to me you can make strong arguments from both sides, but you ought to be saying what the law is. And I think way too often lawyers are coming on just stating things that are patently false, either because they're lying, or they don't know what the law is.

BARRY SCHECK: But there is a difficult question, Ann, regarding, let's say, your listening to the tapes. I'm not necessarily saying that puts you in one camp or the other. But obviously anybody who got to listen to the tapes before Ken Starr and contemporaneously with Michael Isikoff arguably is wired in to something. And I think the problem is, is that when you get on the air as one of these pundits, are you wearing your journalism hat, or are you wearing your lawyer hat? A lot of thought, I think, has to go into those roles. Just from the point of view --

ANN COULTER: Well, if I could -

BARRY SCHECK: Just let me finish. From the point of view of journalistic ethics, you know, there's a problem here. If you're going on the air and you're talking about the tapes, from the journalism point of view, does the audience have a right to know that you actually listened to them, because you are commentating about the substance of them? Isn't that something in terms of making biases or even just plain important information known to the public that's important?

ANN COULTER: Well, I think if I had been influenced and biased, I would have been wrong in my legal commentary more often.

TERENCE SMITH: All right.

BARRY SCHECHT: It's not a question of influenced and biased. I mean, if you've actually heard tapes that people -

ANN COULTER: Well, I wasn't really discussing the tapes.

BARRY SCHECK: The people - but at that point in time everybody was discussing the tapes, whether Monica Lewinsky was believable or not, or Linda Tripp was believable or not, how much credit you put in the tapes, you'd actually listened to them, but oddly enough, we didn't know that you had.

TERENCE SMITH: Paul Campos --

ANN COULTER: I don't see what difference that makes.

TERENCE SMITH: Paul Campos, let me ask you this. I suspect this conversation that we're listening to illustrates some of the things that bother you about legal commentary -

PAUL CAMPOS: Precisely.

TERENCE SMITH: -- on television.

PAUL CAMPOS: Yes. I think that one of the most striking aspects of our legal culture is its highly adversarial character, which is not surprising, given that we have an adversary system in which we usually resolve things through some kind of head-to-head litigation, and what we tend to see in the media is a replication of the discourse of the - of a courtroom in which each side will characterize the evidence and the arguments in the most slanted and biased way that they can get away with, that they believe will be effective under the circumstances, given the decision-maker, and it doesn't strike me as a particularly desirable or mature way to discuss the kinds of political and cultural issues which lawyers are very often asked about, and let me just elaborate on that point a bit by saying that when Ann Coulter says that there is a particular expertise that lawyers bring to the table about what high crimes and misdemeanors means, that's true in a very limited sense. I mean, there's something that we can learn from history here, but almost the entire substance of a decision will essentially have to be based on the political and cultural norms of the present moment, something that lawyers have no particular knowledge about and to see lawyers engaging in this kind of litigation posturing over a question like what the phrase "high crimes and misdemeanors" means, I think brings the whole legal system into a sort of bad light.

TERENCE SMITH: Rog Cossack.

ROGER COSSACK: Paul, I think that in a sense what you're doing is taking the debate over high crimes and misdemeanors and taking it out of context. Remember that for the last several months we have - we, lawyers, have discussed a grand jury investigation of which a special prosecutor has investigated. Who better to talk about those things than lawyers, lawyers who know something about the criminal law, people who have represented clients before grand juries, who better to describe that? And what has taken back into political context with the impeachment, and I understand the issue because we at "Burden of Proof" had that problem in terms of trying to decide is this political, is it legal, and we think it's a little of both, and we try and do our shows with politicians, members of the House Judiciary Committee, as well as lawyers, to try to accommodate that straddle.

TERENCE SMITH: Well, fair enough, but you have to - now it is political. Now it is in the Congress. And it ranges from -

ROGER COSSACK: It's not entirely political because, remember, these charges are phrased in legal terms, obstruction of justice is a legal term. Perjury is a legal term.

BARRY SCHECK: Frankly, Paul, I think you're - I agree with you about the problem, but I think you're missing the point as to the cause. It's not the nature of lawyers, per se. It's frankly the nature of the media forums in which people are talking, and they're not always lawyers, very often they're political consultants as well. The problem is, is that the shows we're talking about are designed to accentuate conflict, to sound bite people in like seconds, the producers are picking people so they'll fight with each other to make good television, to create a certain kind of ratings vehicle, and basically we're not getting context, we're not getting a sense of proportion, we're not really getting educated. And that's really a problem here. It's the media that's creating the forums. It's not the nature of lawyers per se.

TERENCE SMITH: Just a final word from Ann Coulter and then we're out.

ANN COULTER: Well, moreover, we're not going to win/loss records. I've never been associated with a profession, where people go out and make predictions constantly about things like how a court will rule, what sexual harassment is, whether other women will be able to be deposed. The presidential immunity case and many people are consistently wrong, over and over and over again. It's so easy to line up win/loss records, and the same ones who have been wrong 17 times before come out and make up something about whatever the next legal question is. I really think a win/loss record tells you more about a person's bias than any investigative reporting the person has done.

TERENCE SMITH: All right. Regrettably, we're out of time. Thank you all very much.% ? ESSAY - TIME LINES

ELIZABETH FARNSWORTH: Finally tonight, essayist Anne Taylor Fleming considers aging baby boomers.

ANNE TAYLOR FLEMING: There isn't a day without a reminder, some panacea, some antidote towards aging, being offered up for those of us dancing around the mid-life line - if we'll only take this, try that, eat this, don't eat that, we can stem the tide of time. The promises were being made in books and magazines, a legitimate doctor's and illegitimate quacks, all trying to entice us aging baby boomers into swilling from the expensive fountain of youth. If only we use this piece of exercise equipment, our flesh will stay firm and youthful. If we just take this elixir or herb or supplement, Ginkgo or St. John's Wart or homeopathic estrogen, we won't lose any mental ground. Our brain cells will zip zap as in the days of yore. We'll feel better than we have in years. Even the big drug companies are plowing down with increasingly lucrative road. We can, of course, succumb to the night and have our faces lifted, our breasts uplifted, our bodies restored to the golden days of yesterday. We can even slip a little botox, a strain of botulism, to our foreheads, paralyze our frowns, the grimace never more. It's men too, not just women, who are increasingly unveiling themselves of cosmetic surgery, not to mention hair transplants, not to mention Viagra.

COMEDIAN: They're going to advertise Viagra on TV. You thought those Afron commercials where the guy turned into a big nose were annoying -

ANNE TAYLOR FLEMING: Has any pill ever hit with more promise, more hoopla, developed to answer a legitimate medical need, Viagra clearly hit a mark and insecurity, a hope, a fear, deep within the aging male psyche, the female psyche too for that matter, as women themselves started trying it. Nobody wants to be left behind in the great American youth restoring sweepstakes. Why do I find it all so hopeful and yet all so sad and slightly unseemly at the same time? Is this really the way we want to go, all trussed up and bucked up and full of recharged appetites? Aren't we in danger of making fools of ourselves? I guess we had it coming. It is, after all, in our bones, our generational genes. We were the youth culture - with our music and flowers and drugs and spilly passions, we flaunted ourselves back when at the older generation in general and our parents in particular, sneering when they let their hair grow, and donned miniskirts and bell bottoms, they seemed so pathetically groovy. Now here we are, 30 odd years later, doing our parents' dance in spades, availing ourselves of every trick to turn back the clock. We will not go gently into that good night, not for a minute, and the marketeers of America have our number big time. Part of me says, okay, we are going to live longer apparently, so we might as well stay as healthy as possible for the long haul. But the franticness, the fear the denial that underlies this obsessive search, that's what's so off-putting. Do we really want to erase our faces -- not just of the hard won wrinkles but of the marks of laughter or sorrow? Was there a face more stunning, more grumpily luminous than that of Georgia O'Keefe, and what about the French actors Jeanne Morro, so provocative in their unlifted, late in life beauty, or the beautifully beat up faces of artists like Wyatt or DeKoening, or the agingly impish face of lioness Pauling? Are these not the faces of wisdom, of lives lived in pursuit of something bigger? To smooth them would be to erase time itself, to make a mockery of it. We are putting ourselves out of sync with our own narratives, or trying, insisting that there are no seasons to a life. And I'm not sure that ultimately that's going to make us wiser, not to mention happier. I'm Anne Taylor Fleming.% ? RECAP

ELIZABETH FARNSWORTH: Again, the major stories of this Monday, the anti-trust trial of Microsoft began in federal court in Washington. At the Mideast peace talks in Maryland Israel would only discuss security issues with Palestinian negotiators after a Palestinian man was arrested for a grenade attack in Israel, and President Clinton refused an offer by lawyers for Paula Jones to drop her sexual harassment case for $2 million. We'll be with you online and again here tomorrow evening. I'm Elizabeth Farnsworth. Thank you, and good night.