The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight: Our summary of the news; then today's Senate hearings on Iraq with Secretary Wolfowitz and General Myers, with reaction from Senators Reed and Sessions; a report on today's Supreme Court arguments on the legal rights of the Guantanamo detainees; a John Merrow look at how to test special education students; and the story of a Wyoming funeral for a young marine killed in Iraq.

NEWS SUMMARY

JIM LEHRER: There was a deadly mortar attack in Baghdad today, and the victims may have been insurgents themselves. The attack on a prison complex west of the city killed 22 detainees, wounded 92 others. The victims were Iraqis, suspected of being guerrillas or loyalists to the old regime. To the North, a U.S. soldier was killed by a roadside bomb in Mosul. That makes 100 Americans killed in combat this month. The Halliburton Company also confirmed today that three bodies found earlier this month in Iraq were contract employees. They disappeared after an attack on a fuel convoy. A fourth body has not been identified. Two U.S. soldiers and three contract workers are still missing from that incident. Also today, the U.S. Military confirmed American troops killed two Iraqi journalists on Monday. A spokesman said their car ignored warning shots. Iraqis began returning to Fallujah today, in a deal aimed at ending a two-week-old siege. U.S. Marines limited the flow to 50 families per day. Several hundred Iraqi security forces also returned for the first time since the fighting began. Local leaders negotiated the deal, but in Washington today, Defense Secretary Rumsfeld said it's not clear they have any sway over the guerrillas.

DONALD RUMSFELD: They're not talking to the former intelligence officers that are in there. They're not talking to the SSO or the special Republican Guard that are in there. These are the people causing the problem. These are the ones terrorizing the people of Fallujah. So the chance of those negotiations producing an outcome along the lines that you have described, it seems to me realistically to be difficult.

JIM LEHRER: The Iraq coalition faced new losses today. Honduras said its 370 troops would leave within two months, and Thailand said its 450 soldiers would head home if they're attacked. Spain already announced plans to pull 1,400 troops from Iraq. In response, a White House spokesman insisted today the coalition remains strong. He said a new U.N. resolution could encourage other nations to join. Congress pressed the Bush administration today for answers on Iraq. Republicans and Democrats voiced concern about the recent violence. At a Senate hearing, Republican Senator Dick Lugar of Indiana said Congress needs to know what comes next.

SEN. RICHARD LUGAR: Our experiences with inadequate planning and communication related to Iraq contribute to the determination of this committee to impose a very high standard on the information provided about Iraq. The administration must present a detailed plan to prove to Americans, Iraqis and our allies that we have a strategy, and that we are commit to making it work.

JIM LEHRER: At another hearing, Democrats criticized deputy defense secretary Wolfowitz over his defense of U.S. policy. We'll have more on that hearing in a moment. The U.S. Supreme Court heard arguments today on whether foreign detainees at Guantanamo Bay, Cuba, deserve access to U.S. courts. More than 600 men are affected. Most were captured in Afghanistan. They're classified as enemy combatants, meaning they can be held indefinitely without the right to a trial. We'll have more on this story later in the program. A key Arab leader voiced strong criticism today of U.S. policy in the Middle East. Egyptian President Hosni Mubarak told a French newspaper: "There exists today a hatred never equaled in the region" toward Americans. He referred in part to President Bush's statement that some Jewish settlements might remain on the West Bank. But in Washington, Secretary of State Colin Powell said the Palestinians still have a say in that issue, and he said Arab opinion will come around.

COLIN POWELL: I think that people will see over time the United States is committed to the welfare and benefit and the hopes and dreams and aspirations of the Arab nations, and especially the hopes and dreams and aspirations of the Palestinian people. I hope as people understand that and see progress in all of those areas, the difficulties we're having with Arab opinion toward the United States will change.

JIM LEHRER: Yesterday, King Abdullah of Jordan postponed a scheduled visit to Washington, over concerns about U.S. policy. The U.S. Labor Department scaled back the new rules on overtime pay today. The Department said more than 100,000 high-paid workers may still lose overtime under the new rules. That's down from nearly 650,000 under a draft issued last year. The new rules guarantee overtime to more than 6.5 million workers, including police and firefighters. That's a five-fold increase from the earlier version. Democratic opponents said today they're still skeptical of the plan and the numbers. WorldCom emerged from bankruptcy today, and reverted to the name MCI. The long-distance carrier filed for bankruptcy protection in July of 2002. It was the largest corporate accounting fraud case in U.S. History. So far, five former executives have pleaded guilty to federal charges. The reorganized company has reduced its debt by $35 billion, and cut 20,000 employees. On Wall Street today, stocks fell over new concerns that interest rates will go up soon. The slide began after Federal Reserve Chairman Greenspan told a Senate committee the nation's banks could handle higher rates. The Dow Jones Industrial Average lost 123 points to close at 10,314. The NASDAQ fell more than 41 points, or 2 percent, to close below 1979. That's it for the News Summary tonight. Now it's on to Wolfowitz and Myers before the Senate, Senators Reed and Sessions, a Guantanamo detainees case before the Supreme Court, testing special ed students, and a funeral in Wyoming.

UPDATE - TROUBLED TRANSITION

JIM LEHRER: Congress takes up the Iraq issue. Kwame Holman begins.

KWAME HOLMAN: Members of the Senate Armed Services Committee, just back from their April recess, called on Deputy Secretary of Defense Paul Wolfowitz this morning to provide a near-term outlook for the military in Iraq. The chief concern was the recent surge in attacks against U.S. and coalition forces that have caused a dramatic increase in the numbers of troops killed and injured.

PAUL WOLFOWITZ: I think the enemy that we arefacing is an enemy that rests on killing and death and terror, not an enemy that has genuine popular appeal. We have to work on our side on improving the belief of the Iraqi people in their future and the belief in what we can do for their future, but we also have to work to overcome the fear that these people implant. There are enormous problems. Gen. Petraeus called it the Man-on-the-Moon phenomenon. That is to say, you Americans can put a man on the Moon; how come my electricity doesn't work? How come the sewers aren't fixed? How come everything isn't perfect after liberation? One of the lessons we are trying to learn is the roadblocks that have made it slower than I believe is acceptable to get projects moving. Some of those roadblocks are unavoidable. They are the inevitable result of an insecure situation.

KWAME HOLMAN: Committee Chairman John Warner asked how the U.S. Military would operate after the planned transfer of sovereignty to the Iraqis on July 1.

SEN. JOHN WARNER: We've seen recently in the Fallujah operations where there's been some honest difference of opinion between members of the Iraqi governing council, current governing body, and our military commanders as to the timing, the quantum, and otherwise the use of force. And if you're going to give them sovereignty and at the same time our military commander, as I believe you're saying, has the authority to make those decisions as to how to apply force, I see a basic conflict of interest here.

PAUL WOLFOWITZ: The answer is you have got to be prepared to discuss, to negotiate, and also at the end of the day to use the authority that is granted to us. That is I would say describes the way we're proceeding in Fallujah, it's the way we'll have to proceed until such time as Iraq is fully in control of whatever forces are there.

KWAME HOLMAN: As he has many times before, Wolfowitz also defended the president's decision to go to war in the first place, repeating some familiar reasons why Saddam Hussein had to be driven from power.

PAUL WOLFOWITZ: Saddam Hussein was more than just another bad guy. He institutionalized and sanctioned brutality on a scale that is simply unimaginable to most Americans. He ruled by fear, creating a society in which the ideal citizen was a torturer or an informer, a smothering blanket of fear woven by 35 years of repression, where even the smallest mistake could bring torture or death, or fates worse than death, like the death of one's children or the rape of one's relatives. That fear won't be cast off in just a few weeks or even just a year or two.

KWAME HOLMAN: Taking his turn in the questioning, Massachusetts Democrat Edward Kennedy acknowledged Hussein's human rights record, but criticized Wolfowitz for what he didn't say.

SEN. EDWARD KENNEDY: There wasn't a word in this presentation about the weapons of mass destruction in this presentation here this morning. Now Mr. Secretary you were one of the principle architects of war with Iraq. It's been on your agenda since the end of the Gulf War, 1991.

PAUL WOLFOWITZ: The notion that an invasion of Iraq has been on the agenda since 1991 is simply wrong, sir.

KWAME HOLMAN: Kennedy also challenged Wolfowitz to explain assertions in a new book by the "Washington Post's" Bob Woodward that in 2002, the pentagon rerouted millions of dollars Congress approved for rebuilding Afghanistan to begin preparations for the Iraq war.

SEN. EDWARD KENNEDY: Can you tell me why the administration diverted funds though when we were beginning to target Osama bin Laden, had him evidently, effectivelytrapped in Tora Bora and the administration diverted $700 million out of that to go to... to advance the process in terms of Iraq? And if so, how much responsibility do you bear in that?

PAUL WOLFOWITZ: That $750 million number comes from a set of tasks that CENTCOM put together in the summer of 2002, as things that they would want to have in the event of an Iraq contingency. All the investments were designed to strengthen our capabilities in the region or support ongoing requirements. No funding was made available for those things that had Iraq as the exclusive purpose.

KWAME HOLMAN: Minnesota Democrat Mark Dayton complained he was not getting the kinds of answers he'd hoped to hear.

SEN. MARK DAYTON: We've been given a series of glossy statements of what transpired over the last year and how bad Saddam Hussein is, which we know, and the fact that there aren't any weapons of mass destruction and that our military, armed forces are now, as the ranking member said, are suffering greater casualties than at any other time. What we hear is that he's a really, really bad man. That's not the point here. The point is that we have a right to know and we should be told what is really going on over there in factual terms, military terms and that's what I've sat through now most of the last three hours and watched other parts of it on television to find out that virtually nothing's been said.

PAUL WOLFOWITZ: Senator Dayton, the reason I talked about the nature of the Saddam Hussein regime is because that is still the enemy. We are still fighting them, they are still threatening Iraqis in a way that is part of our challenge. It's not getting into old debates.

KWAME HOLMAN: John Ensign, Republican of Nevada, asked whether domestic debates over U.S. policy might have a negative impact on the ground in Iraq.

SEN. JOHN ENSIGN: I believe very strongly that the only way that we lose in Iraq, Afghanistan, really this whole global war on terrorism, but especially right now war in Iraq is if we lose the support of the American people. And I want to get your sense of the political comments that are made here how it affects the military operation and the morale of the terrorist, and the insurgents over in Iraq.

PAUL WOLFOWITZ: We simply can't allow the enemy to deny us the right to hold free debate, our men and women out there on the front lines are fighting so that we can have a free country and a country where we debate freely. I think everybody in that debate has to think about what their proper role is, but what I have said I said it clearly in my testimony. I applaud what Senator Lieberman said. I think it is very important that we do what we can to send a message to the enemy that don't confuse American debate with American weakness.

KWAME HOLMAN: Today's session was the first of several congressional hearings scheduled this week on the subject of Iraq. Wolfowitz is to appear before the House Armed Services Committee tomorrow.

JIM LEHRER: Now to two members of the Senate Armed Services Committee: Jeff Sessions, Republican of Alabama; and Jack Reed, Democrat of Rhode Island.

Sen. Reed, after today's hearing, how do you feel about the course the administration is pursuing in Iraq right now?

SEN. JACK REED: Well, there are more questions unanswered than answered in today's hearing. We first don't know what the new government of Iraq will look like. And we're just a few weeks away from that new government. I think the administration has been less than forthcoming on the status of security troops, Iraqi troops. They did not perform well. I think Secretary Wolfowitz trying to convince everyone that this is just a small band of diehards from the Baathist regime when in fact there is growing resentment, significant resentment of the occupation, our presence there. So we have so many unanswered questions, not about two or three years ago, not about why we're there. But what are we going to do to stabilize the situation, protect American lives and get on the development of a stable government in Iraq.

JIM LEHRER: Senator Sessions, do you agree there are a lot of unanswered questions tonight?

SEN. JEFF SESSIONS: Well, I don't agree with Senator Reed's characterization of the hearing at all. I think things went well, he answered the questions comprehensibly as did General Myers, as did Mr. Grossman. They were available for hours; they sat there and answered every question that came to them. And I think there are a number of things that we don't know. We don't know exactly how this new government will come about but they explained in quite a good bit of detail what we could expect, that the U.N. is working there, and I think that we... they're very firm in saying that the deadline of June 30 should be met, and that we would begin the transformation of an Iraqi government that would be in charge of leading the Iraqi police, which would give them more of a sense of ownership of their own country's defense. I think that would be good because I believe like Senator Reed, that we need to do a better job of bringing those police on and I think a great deal of effort is going into that, particularly by sending the general there to make sure it happens.

JIM LEHRER: Just for the record, Mr. Grossman is an official of the State Department. General Myers of course is the chairman of the Joint Chiefs of Staff. Well, Senator Reed, going back to your point and now you heard what Senator Sessions just said, are you concerned about whether or not we should even hand over sovereignty to the Iraqis on July 1?

SEN. JACK REED: Well, that data become unavoidable. One can question the wisdom of picking a date like that almost arbitrarily. But in the minds of most Iraqis, they're going to assume they're sovereign on July 1. The real question is will it make any difference? Is the date relevant? We are still going to be the dominant security force in the country. As Chairman Water was pointing out, if we have a military force that can override and overrule the sovereign entity, that question is sovereignty in my mind and probably in the minds of the Iraqi people. The question is not just sovereignty; it's legitimacy. And there are real questions on July 1 whether the majority of the Iraqis will perceive that government as legitimate. And I respectfully disagree, at least on one point with my colleague, Senator Sessions. I asked Secretary Wolfowitz and General Myers when they were going to send a supplemental appropriations bill up. Most people can see that we need about $50 billion to finish this year and get into the next year in terms of funding our efforts there. And they just categorically refuse to respond and say when if ever.

JIM LEHRER: What about that, Sen. Sessions, did that concern you?

SEN. JEFF SESSIONS: I don't think there is any understanding now of what kind of supplemental may be needed. We had an $87 billion supplemental. When the time comes and additional funds are needed, I think it will be requested but I hope we'll be able to go some time before another supplemental is requested.

JIM LEHRER: But what about the additional point that Senator Reed made quoting from our clip of Senator Warner, his concern over who is really going to be running things -- sovereignty goes to a form of the Iraqi government, whatever it is, but the military force remains in the hands of the United States. Do you think that's going to work?

SEN. JEFF SESSIONS: Well, it's not quite like that, but the United States military will remain there. There is not ever been one suggestion that we would be leaving on June 30 when the transition occurs. But they will be able to defend themselves and will be able to fight against attacks that come against the people of Iraq. That's understood under the U.N. Resolution. The 1511, I believe it is, says that, of the U.N. force for which the United States is the leader will be the primary security force there. So they have that authority until new government, new constitution, and new elections a year or so away, occur.

JIM LEHRER: So you don't share Senator Warner's confusion, or as he said, potential conflict of interest over these two separate roles?

SEN. JEFF SESSIONS: Well, I think the senator raising a good point. He is saying that by saying that we are doing complete sovereignty or suggesting that, it may mislead the Iraqi people and cause some confusion there. I think he raised a good point. It was something well worth discussing. Senator Levin and others discussed that also.

JIM LEHRER: Sen. Reed, what about Sen. Kennedy's point quoting from or citing Bob Woodward's book about the $750 million that was allegedly diverted from Afghanistan funds towards planning or getting ready to take action in Iraq? What is your thought about that?

SEN. JACK REED: Well, there might be a legal justification for it. It goes to the intent of the original legislation, but I think there are two important points to be made. First, as Sen. Kennedy points out, at that moment, we were applying maximum pressure to the situation in Afghanistan, and the presumption for those of us who were voted for the money, was that all that money would go to Afghanistan to do things directly related to subduing Osama bin Laden and ending finally and totally the Taliban regime. The second point, I think it illustrates, is the lack of candor in terms of expenditures, in terms of reports: the lack of candor coming from the Department of Defense. It would have been much better if they had come up here and clearly briefed us, told us the consequences, laid it out because that way not only would we know but the public would know. I think that's one of the aspects of this issue that illustrates this persistent lack of candor.

JIM LEHRER: Persistent lack of candor, Sen. Sessions?

SEN. JEFF SESSIONS: I don't agree with that at all. I hate to keep hearing those words. This is a political season and I know we are into it but I believe Sec. Wolfowitz and Sec. Rumsfeld and General Myers have been open and honest with us. The president has told us this is going to be a long struggle against terrorism, and in fact we have made great progress. Pakistan has chosen to eliminate terrorism and go against terrorism and be our ally. Afghanistan has been liberated. The Taliban removed, al-Qaida has fled. Iraq and Saddam Hussein has been overthrown and he has been pulled out of his hole. Libya has turned against terrorism. We've made a lot of progress in the last few months. It's because of courageous leadership by the president really.

JIM LEHRER: What about the specific issue of $750 million?

SEN. JEFF SESSIONS: I think the secretary answered that very carefully. He said that every dime of that that was spent was spent in consistent the law and the authority he had been given. Maybe the senator would like to have had more information about it and perhaps he should have gotten more information about it. But I do believe it was a legal expenditure as he explained in detail.

JIM LEHRER: Sen. Reed, on this subject in a more general way, House Minority Leader Nancy Pelosi said today based on her reading of the Woodward book that, "The war against Iraq was conceived in secret, planned in secret and may have been at least partly financed in secret." Has she got it right?

SEN. JACK REED: Well, I haven't read the Woodward book but my experience suggests that much of this was done in secret. These revelations -- not only the Woodward book but the O'Neill book and the Clarke book believe suggest that there was much deliberate planning going on and there was no indication, at least to me, when I asked questions in the fall of 2002, that that type of planning was going on. So I think there was very much of a secretive approach to this effort, whether it encompassed financing I don't know, but frankly in terms of the planning, in terms of the decision, it seems to have been made in a very small circle and not communicated effectively or in a timely way certainly to decision makers.

JIM LEHRER: You think it should have been?

SEN. JACK REED: Oh, I think so. I think it would have helped us do several things. One make better judgments about policy, but second, it would have given us the opportunity to ask questions about the follow-on to the attack -- what plans we had for the new Iraqi government. All those hostility issues that are now causing us tremendous dilemmas here in Washington. What about security troops -- how long will they be there? All of that debate was I think swept away because of the very secretive approach to planning and developing their plans for the conflict.

JIM LEHRER: Do you agree with that, Sen. Sessions?

SEN. JEFF SESSIONS: No, I don't agree with that.

JIM LEHRER: Y'all haven't agreed on anything yet. Go ahead.

SEN. JEFF SESSIONS: As much as Senator Reed is overstating this. It's just not accurate to say things were done in secret. We had secret briefing after secret briefing right in this building right here. We had hearing....

JIM LEHRER: Members of the Senate Armed Services Committee?

SEN. JEFF SESSIONS: No, the full Senate.

JIM LEHRER: The full Senate.

SEN. JEFF SESSIONS: And we had debate for weeks and months on the floor of the Senate -- speeches by the president leading up to any decision to use military action in Iraq. There was no secret that the pressure was building on Saddam Hussein. The only question was: was he going to yield and allow and show proof that he destroyed his weapons of mass destruction? And he refused to do so and that's what led to this war. Everybody had access to the intelligence data. There was no misleading. If anything, as Dr. Kay said who led the search over there for weapons of mass destruction, he said if anything, the president was misled when he was told by CIA that it existed. But, you know, we acted on the best intelligence we had and president did also. And frankly, I've always felt there are a number of reasons to remove Saddam Hussein. One is the first Gulf War never ended. We were dropping bombs on him. He was shooting at our airplanes we were spending billions of dollars to contain him. The embargo that was endorsed by the U.N. was breaking down dramatically and soon he would have been there with all that oil money building his weapons of mass destruction and threatening once again the Middle East.

JIM LEHRER: Sen. Reed, how do you feel about that?

SEN. JACK REED: Well, again, I think there was episodes where the full intelligence was not revealed. I recall listening to Vice President Cheney on "Meet the Press" talking about Saddam developing nuclear weapons. And that later was found to be unsubstantiated. So I don't believe we had the kind of intelligent insight that we needed. Frankly if the CIA failed the president, then the president should have taken very severe and very prompt action to change situation of the CIA -- either dismiss Mr. Tenet or make fundamental changes. None of that has happened. So my sense is that this process of secrecy which characterized the administration not just in this run-up but in other areas is something that interferes with our ability to discharge our responsibilities under the Constitution and also it contributes to some of the difficulties we have today. We would have been better prepared if we had had an open debate on Iraq about the post-occupation. I can recall where they refused to even send Gen. Garner up here to talk to the Senate foreign relations Committee.

JIM LEHRER: Gentlemen, thank you both very much.

SEN. JACK REED: Thank you.

SEN. JEFF SESSIONS: Thank you.

FOCUS - WAR AND LIBERTIES

JIM LEHRER: Still to come on the NewsHour, the Guantanamo detainees, special education and No Child Left Behind, and a fallen son of Wyoming. Margaret Warner has the Guantanamo story.

MARGARET WARNER: After the war in Afghanistan, U.S. forces transferred some 650 captured foreign fighters to a U.S. Naval base at Guantanamo Bay in Cuba. For two years, these enemy combatants have been held and interrogated without formal charges or access to American courts. Today's cases involve more than a dozen British, Australian and Kuwaiti detainees who have asked for the right to challenge their detentions in U.S. civilian court. Two lower federal courts have said "no." Today was the first time the Supreme Court has heard a challenge to the powers asserted by the Bush administration in the wake of 9/11. High interest prompted the court to release audio tapes shortly after the hearing. We go into the courtroom now with Marcia Coyle of the "National Law Journal." Jan Crawford Greenberg is on maternity leave.

Welcome back, Marcia.

MARCIA COYLE: Thank you.

MARGARET WARNER: We should say at the outset that the issue before the court today was actually a rather narrow one.

MARCIA COYLE: Yes, it is. The court has agreed to decide whether federal courts have the power to hear claims by these detainees that they're being held illegally by the president. So basically it's a question of whether federal courthouse doors are open to these detainees.

MARGARET WARNER: Now the lawyer for the detainees, John Gibbons, went first. On what basis was he asserting that they have this right? Was this some constitutional right he said they had?

MARCIA COYLE: No. He actually claimed that the federal habeas corpus statute does give federal courts this authority. That federal law basically permits federal courts to review the legality of the attentions by the executive branch. And he argues that the statute's language speaks of prisoners, not citizens, not non-citizens, not aliens, enemy aliens, or friendly aliens, just prisoners, and that's who his clients are.

MARGARET WARNER: Now there was a little exchange with Justice Kennedy which Gibbons acknowledged that he wouldn't assert that this right to habeas corpus started on the battlefield.

MARCIA COYLE: No. I think Justice Kennedy was trying to probe how far the detainees' position goes. When Judge Gibbons said that habeas corpus applies to prisoners anywhere, he made a point of clarifying for Justice Kennedy that habeas corpus does not extend to the battlefield and never has.

MARGARET WARNER: So, of course, that raises the issue of, okay, what is Guantanamo Bay?

MARCIA COYLE: Exactly.

MARGARET WARNER: Is it essentially a battlefield moved a little closer to the states but still overseas, or is it sovereign U.S. territory?

MARCIA COYLE: Right. This is the key issue in this case - and Judge Gibbons says that Guantanamo Bay is U.S. territory and so habeas corpus should extend to the detainees, and he looks to the lease that the United States has with Cuba to make his point.

MARGARET WARNER: Now Justices Ginsburg and Rehnquist had quite an exchange with Mr. Gibbons on that point, let's listen.

JOHN GIBBONS: The court of appeals did rely on some mystical ultimate sovereignty of Cuba over, as we navy types call it, Gitmo -- treating the navy base there as a no law zone. Now Guantanamo Navy Base, as I can attest from my year of personal experience, is under complete United States control and has been for a century.

RUTH BADER GINSBURG: We don't need your personal experience. That's what it says in the treaty. It says complete jurisdiction.

JOHN GIBBONS: That's exactly what it says in the lease, yes.

REHNQUIST: It also says Cuba retains sovereignty.

JOHN GIBBONS: It does not say that. It says that if the United States decides to surrender the perpetual lease, Cuba has ultimate sovereignty, whatever that means. For example, if one of the detainees here assaulted another detainee in Guantanamo, there is no question they would be prosecuted under American law because no other law applies there. Cuban law doesn't apply there. Cuban law has never had any application inside that base. A stamp with Fidel Castro's picture on it wouldn't get a letter off the base.

RUTH BADER GINSBURG: Is it like a federal enclave within a state?

JOHN GIBBONS: Well, Guantanamo is, to some extent, unique. We have exclusive jurisdiction and control over civil law in Guantanamo, and have had for a century. So it's so totally artificial to say that because of this provision in the lease, the executive branch can create a no law zone where it is not accountable to any judiciary anywhere. Now, in some other places where the United States has a base, there may be other civil authority that can demand an accounting. What the executive branch is saying here is "we don't have to account to anyone anywhere."

MARGARET WARNER: Alright, now that was pretty much right at the end of his presentation and then it was Solicitor General Ted Olson's turn. What was his basic counter argument?

MARCIA COYLE: Well, in terms of sovereignty he's claiming that this is not U.S. territory; that Cuba is sovereign and so habeas corpus cannot extend to the detainees. But he is saying at the heart of his case is a 1950 Supreme Court case called "Johnson vs. Isentreger." And this case involved -- this was a post War World II case involving Germans who were tried by a U.S. Military tribunal in China for violating the laws of war by assisting the Japanese after Germany had surrendered. And the Supreme Court in that case had held that enemy aliens have no access to federal courts and really have no constitutional rights to enforce if they are in federal court. Solicitor General Olson basically says our case is Isentregor. These are enemy aliens, they're outside the territory of the United States; they have no access to our courts.

MARGARET WARNER: Which, of course, Gibbons had disagreed with earlier.

MARCIA COYLE: Yes, he did. He said that his clients are not the Eisentrager convicted enemy aliens. One, they claim they're innocent. Two, they have never been tried by any court.

MARGARET WARNER: And of course, Justice Breyer disagreed that the precedent was obvious. And he had another concern, didn't he? Let's listen to this exchange between Breyer and Olsen with a brief interjection from Justice Scalia.

STEPHEN BREYER: It's obvious that there is language in Eisentrager that supports you and also language that is against you. If we go with you, it has a virtue of clarity, there is a clear rule. Not a citizen, outside the United States, you don't get the foot in the door. But against you is that same fact. It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check. That's problem one. Problem two is that we have several hundred years of British history where the cases interpreting habeas corpus said to the contrary, anyway. So if it's that choice, why not say "sure, you get your foot in the door, prisoners in Guantanamo, and we'll use the substantive rights to work out something that's protective but practical."

TED OLSEN: Well, Justice Breyer, there are several answers to that. You started with the proposition that there is no check and the executive is asserting no check. This is the interpretation of the scope of a habeas statute. Congress has had 54 years with full awareness of the decision to change it. Indeed, as we point out in our brief, eight months after the Eisentrager decision, a bill was introduced that would have changed that statute -- HR-2812 which would specifically changed the statute to deal with the Eisentrager situation. So there is a check --

RUTH BADER GINSBURG: It could have been just clarifying, general Olsen, as you well know, the fact that a bill was introduced and not passed carries very little weight on what law that exists.

ANTONIN SCALIA: Well, you are not using it to, to say what law is. You're using it to show that there was available and is available a perfectly good check upon the executive branch. If the people think that this is unfair, if Congress thinks it's unfair, with a stroke of the pen they can change the habeas statute.

TED OLSEN: That's precisely correct. Congress has also dealt with the habeas statute in a variety of other ways and has seen fit in no way to change the decision required by this court with respect to the statute.

STEPHEN BREYER: I'm still honestly most worried about fact that there would be a large category of unchecked and un-checkable actions dealing with the detention of individuals that are being held in a place where America has power to do everything.

MARGARET WARNER: So at the end there was Justice Breyer suggesting that even the government might-- it might be a good idea to let this get into federal court and let it get decided on the merits rather than the constitutional argument which is so arcane?

MARCIA COYLE: He did seem to be suggesting that. Justice Breyer has a wonderful way of summing up both sides of an argument, and then leaving you hanging as to where exactly he would come out. But yes, and I don't think the government wants that at all because they are concerned about micromanagement of the war on terrorism by the federal judiciary, and feel that the political branches, the executive and Congress, have always made decisions in terms of war and the federal judiciary for very good reason, should just stay out.

MARGARET WARNER: And bottom line, how much of this, at least from the government's side, their view of the rightness of this, does it rest on the fact that these detainees are not U.S. citizens? It was very obvious that when they discovered they had one U.S. citizen at Guantanamo, this Mr. Hanby, they got him out of there.

MARCIA COYLE: I think the government's argument rests on that very strongly. During the argument today, the question of American citizens did come up. And as you know, next week, we are going to be hearing arguments in two cases involving American citizens designated enemy combatants. Solicitor General Olsen said that the protections of habeas corpus do extend to citizens. Our citizens have a special relationship with the government and so there is... there probably would be habeas corpus jurisdiction for American citizens.

MARGARET WARNER: You're a long time court watcher. Based on the questioning today, are you willing to hazard a prediction?

MARCIA COYLE: I almost never hazard on the basis of oral arguments but I can say that there seem to be four justices: Souter, Ginsburg, Stephens, and Breyer....

MARGARET WARNER: I guess Breyer.

MARCIA COYLE: Breyer, exactly, who have concerns about what the government is doing. Just as Scalia and Chief Justice Rehnquist are leaning the other way. It may come down again as it often does, to O'Connor and Kennedy.

MARGARET WARNER: Marcia, thanks so much.

MARCIA COYLE: Thank you.

JIM LEHRER: You may listen to today's Supreme Court arguments in full on our web site at PBS.Org.

FOCUS - TESTING MATTHEW

JIM LEHRER: Now testing students with disabilities under No Child Left Behind. John Merrow, the NewsHour special correspondent for education, reports.

WOMAN: I'm going to be...

JOHN MERROW: Tenth grader Matthew Petrone was born with Down's Syndrome. At his high school in Fairfield, Connecticut, he spends after half day in individualized instruction.

SPOKESPERSON: Step right up. We're going to make a nice semicircle here.

JOHN MERROW: But he also has some classes with his non- disabled peers.

WOMAN: Right hand, left hand, everybody. Yeah, beautiful.

JOHN MERROW: For Matthew, the measure of success in school has always been different.

CATHY BARBELLA PETRONE: I measure that he is part of the whole, that he is learning something, you know, helping him grow in some way grow in some way. I mean, I think I have a pretty -- I mean, I think I have a pretty realistic vision of his abilities.

WOMAN: And he came out.

JOHN MERROW: But earlier this year, Matthew's mother Kathy, learned that the measure of success for her son had changed. Under the federal education law known as "No Child Left Behind," Matthew is now required to take the same tenth grade state test as everyone else.

CATHY BARBELLA PETRONE: First I thought there was an unfairness to this because he clearly was not at that level, and hadn't been exposed in math he is particularly deficient in math. But when I was told it had to happen, I said "okay, we'll just go with it."

JOHN MERROW: The law has also changed testing for students like Beth Dominello. Beth attends Conard High School in Westford, Connecticut.

BETH DOMINELLO: I have a math, I guess it would be called a disability. For example, I don't know my multiplication facts yet. My memory is really bad, it's really... where if you told me seven times nine, I wouldn't know.

JOHN MERROW: Like Beth, most students who have learning disabilities are intelligent but struggle to keep up.

SAMANTHA RUSSELL: I have like slow processing. If everyone in the class gets it and the teacher is like, "all right, we're on a roll," teaching us new things. It's like, I don't understand the first thing he said.

ERIC CALLOWAY: Just all in all, a struggle just to like pay attention in any subject, be it math, social studies, whatever.

YANA RAZUMNAYA: The test, I take extra time, because I take a lot longer with the questions, like if someone, the other kids take a minute for a question, I need the extra minute to think it through.

JOHN MERROW: For students like the ones we immediate at Conard and for others like Matthew Petrone, expectations are higher than ever. No Child Left Behind requires them to reach the same level of proficiency as everyone else. And if their test scores fall short of the mark, their schools will be put on a warning list and ultimately could be shut down.

JOHN MERROW: How many schools of yours have been flagged?

DAVID SKLARZ: We've had all four of our secondary schools. All four blue ribbon award winning schools have now been flagged.

JOHN MERROW: Superintendent David Scars oversees the schools in West Hartford, including Conard High School. Two years ago Conard was named a national school of excellence. Now it is on a warning list because students with disabilities failed to measure up.

DAVID SKLARZ: Everybody is trying to back away from calling them failing schools but once you use the term first time, schools get tagged with that.

JOHN MERROW: Did the school change? Did you suddenly go from blue ribbon to lousy?

DAVID SKLARZ: (Laughs) No, we went from blue ribbon to even better. The rules changed and I think that that's what "No Child Left Behind" has done.

JOHN MERROW: What's happening in West Hartford is happening all over the country. Thousands of schools have been singled out because of the poor performance of students with disabilities. Some say that's exactly the wakeup call the system needed.

EUGENE HICKOK: Fact is, a group of students were being left behind. And now they know that and they will be fine. They're going to turn that around. But they needed to know.

JOHN MERROW: At the U.S. Department of Education, Deputy Secretary Eugene Hickok defends warn that schools with disabilities lag behind.

EUGENE HICKOK: Isn't a public school supposed to serve the entire public? I mean, to me the answer is yes.

REP. TED STRICKLAND: Give me a break. Let me tell you what they're doing over at the department of education. They're engaging in a lot of fanciful rhetoric. Fanciful rhetoric.

JOHN MERROW: Representative Ted Strickland of Ohio voted for "No Child Left Behind." But with 70 percent of students with disabilities failing in his own state, he's now come out hard against the law.

REP. TED STRICKLAND: Every child can learn, but not every child can learn at the same pace or reach the same level of achievement. That is the truth.

JOHN MERROW: Are you getting a lot of heat?

REP. TED STRICKLAND: Oh, sure. We expected it.

JOHN MERROW: Testing students like matt Petrone is generating the most heat. "No Child Left Behind" does provide exemptions but only for students with the most severe disabilities. Thousands of students like matt do not qualify for exemptions and therefore will be tested.

REP. TED STRICKLAND: It is unreasonable to take a child with significantly diminished cognitive abilities and expect them to achieve at an average level. It is not defensible.

JOHN MERROW: At first, Kathy Petrone also thought the idea of testing her sonwas indefensible. Then she changed her mind. To her, "No Child Left Behind" represents a turning point in education for students with disabilities. Only ten years ago, Connecticut routinely sent students like Matthew to separate schools.

CATHY BARBELLA PETRONE: I don't think in general, the educational system really did have that high expectations for Matthew. I mean, there was definitely issues of special education teachers saying, to me, you know, that your son is not going to read. He is only going to read sight words so we are not going to teach him this. And I was like, well how can you know that? How do you know that?

JOHN MERROW: Today, Matthew can read, not as well as his peers but better than most people expected.

CATHY BARBELLA PETRONE: He's kind of like a mirror in terms of the way you react towards him is kind of the way he'll act towards you. If you have low expectations or dismiss him, he'll basically act that way. I've seen this from when he was a child or if you meet him where he is and bring him up to a higher level, generally he will try to do that within his ability. The hope is that, you know, the law will help change expectations and change people's minds.

EUGENE HICKOK: Certainly there has never been tried before. We think this is the next logical step in making sure that special education is part of American public education.

JOHN MERROW: Secretary Hickok said "No Child Left Behind" is forcing schools to take seriously the business of educating kids with special needs.

REP. TED STRICKLAND: Well, there is some truth to that, but the way you correct that problem is not to create a system where students are set up to fail.

CATHY BARBELLA PETRONE: I do not really have expectation that he will pass, but the idea that everyone should have standards, that's a good idea.

This is not just about us. This is about everybody who is coming up behind us, and I hope, you know, that they'll get more opportunities.

JOHN MERROW: Any improvements "No Child" might bring to schools like Conard might arrive too late for today's students. Round two of state testing has already started.

FINALLY - A FALLEN SON

JIM LEHRER: Finally, tonight, a town in Wyoming copes with the loss of one of its own. Spencer Michels narrates our report.

SINGING: Fly away young warrior...

SPENCER MICHELS: The war in Iraq came to the small town of Dubois, Wyoming, last weekend. People gathered to say farewell to 19-year-old Chance Phelps, a Private First Class in the marines who was killed earlier this month in a shootout in Ramadi, just west of Baghdad. Rear Admiral Richard Porterfield spoke at the funeral.

REAR ADMIRAL RICHARD PORTERFIELD: I want you to know that he died a hero. He never let himself or his other fellow marines down. He showed great valor under intense weapons fire at him and his fellow marines.

SPENCER MICHELS: 1,000 people, more than the entire population of the town, came from all over Wyoming and Colorado to attend the funeral. It was held in the high school gymnasium, the only building large enough to hold such a crowd. After the service, people lined Main Street to pay tribute as his body was carried by a horse- drawn wagon up the hill to the cemetery. (Bagpipes playing "Amazing

Grace) Gretchen Mack and John Phelps are his parents. They said their son first started talking about joining the marines after the United States was attacked on Sept. 11.

GRETCHEN MACK: That just changed everything. He just told me, says, "I got to go." I couldn't stop him. I didn't want to stop him, but my heart was just... you know, I think I always knew really that he probably wouldn't come back.

JOHN PHELPS: He was going to go over there to protect us, to fight on their soil instead of our soil. If we don't go over there and fight, we'll be doing it here. It was just as plain and simple as that.

JOHN MERROW: The 960 residents of Dubois are firmly rooted in the land. The picturesque town at the foothills of the Rocky Mountains serves as a gateway to Yellowstone National Park. It's a quiet town that seems a world away from the war in Iraq. Christine Smith is the publisher of the "Dubois Frontier," the town's weekly newspaper. Phelps' death has been the front page story for the past two weeks.

CHRISTINE SMITH: It's not like we're a bunch of uninformed hicks living in a bubble. You know, we read the papers, we see everyday how many soldiers have been killed, and we're touched by it. But living here in a small town and you look around and the beauty of this town sometimes buffers the ugliness of the world. But then you have something like this happen with chance and it's right there in your lap, and you can't ignore it.

JOHN MERROW: Dubois is a close-knit, patriotic town. Since World War II, hundreds of residents have served in foreign wars, and the VFW Hall has become the center of the community. A room at the hall has already been named in honor of Phelps. Next to it a photo display honors the town's sons and daughters who are in the military. Nine are serving in Iraq or will be there shortly. Phelps' death has devastated people here, but it has not dimmed their support for the war.

ROSEY GRAFF: I have a daughter in the military. Most of my friends have children in the military. You know, that's just strong with us, and we worry a lot. We hope that there are no more funerals in Dubois like this. But Iraq needs us. I believe we need to be there and we need to help the world. So we have to do our part, even if we're little Dubois.

JOHN MERROW: Chance Phelps' closest friends said not only was he obsessed with doing his part, he was always encouraging others to do so as well. Private First Class John Hakes joined the marines with Phelps. His only regret is that he has not yet been deployed to Iraq.

PFC. JOHN HAKES: He died for his country and died like a warrior, and he doesn't want anybody crying for him because he died doing what he wanted to do forever. It was just in our heart to go, and that's all we talked about was going over there. The reason it's important is because we're liberating a country that never... doesn't even know what freedom is, and they've never seen it before. And the reason why they are resisting it so much is because they don't know what freedom is and how good it can be.

SPENCER MICHELS: There are some in the community who are opposed to the war. Laney Hicks is a wildlife artist and has written several anti-war letters to the editor of the newspaper. She says she supports the young people who are serving in the military, but she can't support the war.

LANEY HICKS: We love our children and I want them stay here. And I don't think it's any of our business in Iraq. It's not our business to be the policemen of the world. We've always been defenders before and now we are aggressors, and that makes it much more difficult to defend this as a good war.

SPENCER MICHELS: But her view is definitely a small minority in this small rural town.

JOHN PHELPS: See with the blue patina coming down on it. We're simulating moonlight.

SPENCER MICHELS: Chance's father John, who is a Vietnam Vet and a painter and sculptor by trade, has done some military paintings in the past, and he says his son's death will likely inspire him to do many more. Two years ago, the elder Phelps won a competition to sculpt a war memorial for Fremont County. His son was the model for the soldier who is looking down at the helmet of a fallen comrade. Now chance Phelps' name will be among those engraved on the sculpture, the sons and daughters of Dubois killed in action.

RECAP

JIM LEHRER: Again, the major developments of the day: A mortar attack in Baghdad killed 22 Iraqis and wounded 92 at a prison complex. And the U.S. Supreme Court heard arguments on whether foreign detainees at Guantanamo Bay, Cuba, deserve access to U.S. Courts. We'll see you online, and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.