The NewsHour with Jim Lehrer

MR. LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, the Arizona militia case, we have a report by Betty Ann Bowser and an interview with Treasury Department official Raymond Kelly; tomorrow's presidential run-off in Russia, Simon Marks previews; and the just ended term of the U.S. Supreme Court as seen by four constitutional law experts. It all follows our summary of the news this Tuesday. NEWS SUMMARY

MR. LEHRER: The search for information about the Viper Militia of Arizona continued today. Officers found firearms and explosives at the Phoenix homes of the 12 people arrested yesterday. The 12 were charged with planning to bomb buildings housing the ATF, as well as the FBI, the IRS, the Immigration & Naturalization Service, the Secret Service, the Phoenix Police Department, the Arizona National Guard, and the local television station. We'll have more on this story right after the News Summary. The United States offered a $2 million reward today for information on those responsible for the bomb attack in Saudi Arabia. Nineteen Americans at the U.S. Air Force housing facility in Dhrahran were killed in last week's blast. State Department Spokesman Nicholas Burns made the announcement.

NICHOLAS BURNS, State Department Spokesman: There will be no rest for those who shed American blood, and the cowards who committed this act had better sleep with one eye open. We will hunt them down, and they will be found, and we will punish them. We don't know who the people are who committed this terrorist act. We are following a number of leads. There's a reasonable proposition that since they were in Dhrahran last Tuesday night, a week ago today, they may still be there, some place in Saudi Arabia. There's also the proposition that they could be outside the country. There is too much evidence left behind at the scene to allow them to get away with it.

MR. LEHRER: Burns said the U.S. reward will supplement a $3 million reward already offered by the Saudi government. At Andrews Air Force Base outside Washington today, 13 of the more than 200 American troops injured in the bombing arrived from Saudi Arabia. The Air Force personnel will be flown to their home bases in the U.S. for further medical care. On the church fires in this country, President Clinton said today federal money would be made available for fire prevention in states where church fires have taken place.

PRESIDENT CLINTON: Today I am taking emergency action to prevent church burnings by transferring $6 million to communities in 12 targeted states. This emergency transfer would allow every county in the affected states to hire a new police officer for the summer, to patrol the back roads, to visit the churches, to keep watch for signs of trouble. These new officers, working with the local police and community watch groups can maintain a wall of protection to ward off people who strike out in hate at a house of worship.

MR. LEHRER: The money will come from Justice Department funds. More than 40 black churches burned in the past 18 months, mostly in the South. There have also been nearly as many fires at predominantly white churches. A new space vehicle was unveiled today. It's called the X-33. The unveiling was done by Vice President Gore at NASA's jet propulsion laboratory in Pasadena, California. The X-33 is NASA's first new space vehicle in 25 years and it will eventually replace the space shuttle. Lockheed Martin won NASA's year-long contest for the best design and the nearly $1 billion contract to build it. In economic news today, the Commerce Department reported sales of new homes jumped 7.5 percent in May to their highest level in 10 years, and the Conference Board released the Index of Leading Economic Indicators. It was up .3 percent in May to its highest level in more than a year. The Index is designed to forecast economic activity six to nine months ahead. In Los Angeles today, a Superior Court judge sentenced Lyle and Erik Menendez to life in prison without the possibility of parole. The brothers were found guilty earlier this year of killing their parents seven years ago. There was a power outage today in major portions of 15 western states from California to Colorado. Utility officials said 11 separate power plants went off-line simultaneously. A grid that delivers power from the Pacific Northwest to Utah, Wyoming, Montana, Oregon, Idaho, Washington State, and Northern California went down. A spokesman for Pacific Gas & Electric said he did not know how many customers were affected or when power would be restored. There was no immediate word on what caused the outage. Another wildfire is burning in the West. Seventeen hundred fire fighters are battling the blaze east of Los Angeles near Idlewild. Eighty-seven acres have already been destroyed. Thousands of people evacuated the mountain resort area this morning. Fire fighters cleared away dry brush to contain the fire but hot and dry weather conditions have hampered their efforts. And that's it for the News Summary tonight. Now it's on to the Arizona militia case, the Russian run-off election, and a Supreme Court review. FOCUS - VIPER MILITIA - UP IN ARMS

MR. LEHRER: The Viper Militia story is first tonight. A dozen members of that group were arrested yesterday in Phoenix. We begin our coverage with this report by Betty Ann Bowser.

BETTY ANN BOWSER: The government says the 12 suspects had been conspiring for more than two years to blow up a number of buildings with connections to the federal government or law enforcement in Phoenix. Included on the militia's hit list were the Bureau of Alcohol, Tobacco & Firearms, the FBI, the Immigration & Naturalization Service, the IRS, and the Phoenix Police Station. In an affidavit taken last week, an ATF undercover agent who infiltrated the group known as the Viper Militia said the 12 were arming themselves with guns and making bombs to resist the efforts of federal law enforcement. Yesterday and today, ATF agents and members of the Phoenix Police Department's bomb squad searched the homes of arrested militia members. At the home of alleged militia member Gary Curtis Bauer, bomb squad Lt. Mike DeBenedetto said he couldn't believe what they found.

MICHAEL DeBENEDETTO, Phoenix Police Bomb Squad: So far we've got an incredible amount of weapons and for the most part, most of these weapons are rifles, uh, semiautomatic and automatic weapons inside the home. A lot of the weapons that are made inside there are handmade, homemade weapons that this man has either rendered a normal, normally functioning weapon into an automatic capacity, or he has constructed from scratch with a great deal of talent in machine skills his own type of weapons. Uh, we find that very frequently among militia groups, is they create their own kind of weapons from things you can buy at the hardware store, and he's got quite a few.

MS. BOWSER: Are you surprised at the quantity?

MICHAEL DeBENEDETTO: I'm amazed at the quantity of weapons there inside that house right now. There's about--

MS. BOWSER: Are we talking ten, twenty, a hundred?

MICHAEL DeBENEDETTO: I would be surprised if there's not over a hundred weapons inside that house right now.

MS. BOWSER: When you walk in the room, there are like literally guns lying up on top of each other?

MICHAEL DeBENEDETTO: All over the place.

MS. BOWSER: Up and down the walls?

MICHAEL DeBENEDETTO: It's hard to walk without stepping on a weapon through that house right now. There are--part of what the Bureau is doing in there right now is just clearing a path so that they can heavy easy access to the individual rooms.

MS. BOWSER: What about explosives?

MICHAEL DeBENEDETTO: There are components for bombs throughout the house, but he seems to have tried to have limit the individual components to a makeshift shop where he's building his own bombs, rockets, grenades, and things of that nature. So the man's level of expertise in weaponry and ordinance is very, very good.

MS. BOWSER: You deal with bombs all the time.

MICHAEL DeBENEDETTO: Yes.

MS. BOWSER: From what you've seen in there today in terms of the quantity of materials that could be used to make explosives, how big a bomb could somebody build with what you've seen?

MICHAEL DeBENEDETTO: If I had to, to compare it or explain that, I would say that if this stuff blew up last night when we first got here, it would have completely annihilated, leveled this home, without a doubt. It probably would have broken out windows for probably a quarter to a half mile around here because of the percussion involved in this explosion. It would have looked like a Mel Gibson movie.

MS. BOWSER: Yesterday's action represents the largest round-up of militia members ever on serious charges. Federal officials said today they do not anticipate any more major arrests in this case.

MR. LEHRER: Now more on this story from Raymond Kelly, the Undersecretary of the Treasury for Enforcement, which includes supervision of the Bureau of Alcohol, Tobacco, & Firearms, and the U.S. Secret Service. He's a former New York City police commissioner. Mr. Secretary, welcome.

RAYMOND KELLY, Treasury Undersecretary for Enforcement: Thank you, Jim.

MR. LEHRER: Let's go through this, at least what is--first of all, how long has this Viper Militia been in existence?

SEC. KELLY: We believe it's been in existence for about two and a half years. The investigation, itself, has been conducted for a little over six months.

MR. LEHRER: Only 12 people involved?

SEC. KELLY: Only 12 people involved. There was a 13th who tried to join the group. That person was refused. That's the individual who was taken into custody last evening. His name is Huffman. He subsequently was released because he was charged with having automatic weapons; however, what he did apparently when he saw the arrest taking place is he dismantled the automatic nature of the weapons, so he was released today.

MR. LEHRER: These 12 people, what can you tell us about them in terms of backgrounds, ages, sex, education, whatever?

SEC. KELLY: They run from their early 20s to 50. I think Mr. Bauer is 50 years old. He's the individual they were talking about as far as beingthe gunsmith, making guns.

MR. LEHRER: That's whose house Betty Ann Bowser and the, and the Phoenix police officer were at.

SEC. KELLY: Correct. Some of the people are employed. Mr. and Mrs. Belaville, for instance, are employed. Other people are employed sporadically--house painters, that sort of--there are no professional people in this group.

MR. LEHRER: No unabomber types with Ph.D.'s in mathematics or that sort of thing?

SEC. KELLY: No. It doesn't appear to be.

MR. LEHRER: Right. What, what brought them together? What, what- -was it a desire? What desire to do--what did they want to do that brought them together?

SEC. KELLY: It's difficult to say. Many of these groups have fringe people who feel disenfranchised in some way, shape or form, and they seem to bond together. They seem to find themselves. There's no clear indication at least up to now as to what brought these people together.

MR. LEHRER: What was their motivation for wanting to blow up these buildings?

SEC. KELLY: Again, it's hard to say. There's clearly animus, clearly ill feeling against the federal government, and against these, these specific agencies. As far as any specific identifiable wrongs or slight that happened with these agencies, we're not aware of that.

MR. LEHRER: Any connection to any other militia groups?

SEC. KELLY: Not so far. Of course, search warrants have just been concluded, and there's a lot of information. They are going to have to go through that to make an analysis and make determinations if, in fact, there are any connections with other groups.

MR. LEHRER: Thus far, any connection to the Oklahoma City bombing?

SEC. KELLY: No. There doesn't appear to be.

MR. LEHRER: These--had they worked out a timetable for when they were going to blow up these buildings?

SEC. KELLY: No, but they clearly had the wherewithal to create the mayhem. They had significant amount of ammonium nitrate, estimated to be at least, uh, 1,000 pounds. They had at least 70 weapons, automatic weapons for the most part. They converted semiautomatic weapons to fully automatic weapons, and as the officer said, on your piece, built their own automatic weapons.

MR. LEHRER: You can't help but wonder what would 12 people do with 70 automatic weapons.

SEC. KELLY: Well, that's a good question. I think those are some of the questions we still want to see answered.

MR. LEHRER: Yeah. Now, you didn't move on these people because you thought they were about to go blow up all of these buildings, right?

SEC. KELLY: No. This case happened in the normal processes. Evidence was gathered, as you said. We certainly had significant support and help from local authorities. The evidence was presented to the grand jury. A true bill was issued last Thursday with arrest and search warrants and the operation was put into effect, I might say I think very professionally, by ATF and all the local authorities.

MR. LEHRER: Now, this undercover person who went in there, when did he go in there, and who--not his name--but where did he come from, and how did he get in there?

SEC. KELLY: The undercover person is a state employee who came forward to work with ATF and he had a position in the organization.

MR. LEHRER: Now I understand from what I read in the wires that this particular organization said they would kill anybody that they caught--they thought was an infiltrator, is that right?

SEC. KELLY: Yes, they had rhetoric of that nature. They talked about in their videotape that is mentioned in the indictment, about putting devices, anti-personnel devices, in the mailboxes along the way so that when the building was blown up and people responded, the people would be injured or killed, so clearly they were--they were talking some serious business.

MR. LEHRER: But this, this undercover agent, it was more than just a routine undercover assignment in other words, is what I'm saying. If they had found him, they might have shot him, right? Is that--

SEC. KELLY: Highly dangerous, and he did a very professional job.

MR. LEHRER: Yeah. And he was--as you say, he was--he was a local guy, right?

SEC. KELLY: That's correct.

MR. LEHRER: Now the videotape, describe this videotape. What was on this thing?

SEC. KELLY: The videotape showed individuals in a car. You could hear them giving a voice-over describing a building and focusing specifically on columns of that building.

MR. LEHRER: And these are buildings in Phoenix?

SEC. KELLY: This was the Treasury Building.

MR. LEHRER: Treasury.

SEC. KELLY: The one that I looked at, where ATF was headquartered at the time, no longer there, but they were talking specifically about how you would plant explosives to collapse the columns and thereby collapse the building, and that would prevent transmission of information to Washington. And they, they did similar scouting missions on other federal buildings in Phoenix.

MR. LEHRER: Now were these videotapes designed for training purposes--

SEC. KELLY: Correct.

MR. LEHRER: --or for show-off purposes?

SEC. KELLY: Well, they were very much involved in training, training their own people, and their information that they conducted many training sessions, indeed, some of them recorded, so if you look at the charges, it's conspiracy to conduct training to create civil disorder. This was focused on training their own members.

MR. LEHRER: And how did you all get this videotape?

SEC. KELLY: Well, through the course of the investigation, obviously, as you said, there was undercover--

MR. LEHRER: Undercover. Yeah.

SEC. KELLY: --involved in here.

MR. LEHRER: Yeah. Mr. Secretary, should this be seen as an aberration--12 people who got together in Arizona? Are we--are you on to something much more dangerous and widespread than that?

SEC. KELLY: Well, I, I think if there are groups like this, and I think we have to go under the supposition in our business that there are, that they're small in number, we know that there are militia type organizations out there. Many of them are certainly law-abiding people; they do things such as having military exercises, but it's totally within the law. And we don't investigate groups. We investigate criminal acts. My own sense is that groups such as this are certainly small in number.

MR. LEHRER: Is there any doubt in your mind and your colleagues' minds that these people intended to actually carry this thing out, this was more than just a bunch of people sitting around deciding, hey, if we wanted to build, we wanted to blow up these buildings, here's how we would do it?

SEC. KELLY: Well, certainly in my mind there's no doubt the things that they did--first of all, the continual accumulation of explosive devices, the continual manufacture of these weapons, going out and doing scouting, and then going out into the desert and actually exercising, detonating explosives, firing their fully automatic weapons, no doubt in my mind that at some time they were going to pull the trigger on this whole thing.

MR. LEHRER: There have been no details, at least that I have read, about how these people were, in fact, arrested. In the past, there--you know, don't have to tell you--there have been stand-offs and, and sieges and all of that. How did this go so peacefully and so quickly?

SEC. KELLY: Again, I think it was really a tribute to the professionalism of ATF. They had a very detailed and involved plan. They involved the state and local authorities, and it worked like clock work. They were very conscious--

MR. LEHRER: They did it all at one time, all 12 of these--

SEC. KELLY: Did it all--

MR. LEHRER: Were they in different locations?

SEC. KELLY: --within the same time period. All at different locations, with the exception of two--actually three people were taken at the same location.

MR. LEHRER: Location.

SEC. KELLY: But it was done very professionally and with a great sensitivity to the--to keeping any possibility of, of harm to an absolute minimum. No one was hurt. None of the agents were hurt. None of the suspects were injured.

MR. LEHRER: Was there the threat of violence? Do these people--

SEC. KELLY: One person was armed and if, in fact, this operation had not gone as well as it had, they certainly had the ability to perhaps go back to their houses, where we know that they had a lot of weapons as the search has disclosed.

MR. LEHRER: All right. Is there--do you feel sitting here now that there's still an awful lot more information to be found out, or do you feel you've got it?

SEC. KELLY: I think certainly we have the core of this group, but as we go through the information that's been produced as a result of the search warrants, I think there's a lot more useful-- hopefully useful information that we can use to further this investigation and maybe other investigations.

MR. LEHRER: Mr. Kelly, thank you very much.

SEC. KELLY: Thank you, Jim. UPDATE - POLITICS RUSSIAN STYLE

MR. LEHRER: Now an update on tomorrow's second round of presidential elections in Russia. Special correspondent Simon Marks reports from Moscow.

[BORIS YELTSIN DANCING]

SIMON MARKS: It was just three weeks ago that Boris Yeltsin astonished his admirers and detractors alike by dancing his way across the nation in the first round of the Russian presidential election campaign. He was spritely, robust, and energetic, seemingly a new man, despite his two recent heart attacks. But today, the old Boris Yeltsin is back, unseen in public for an entire week ahead of tomorrow's crucial vote, heard from in only a handful of television appearances--and in his final, stiff pre- election address to the nation, urging the Russian people to back him nonetheless in the run-off against Communist leader Gennady Zyuganov.

PRESIDENT BORIS YELTSIN, Russia: [speaking through interpreter] I am firmly convinced that the course we have chosen is correct. I know exactly what needs to be done, and I have the strength, the willpower and the decisiveness to do it. What I need now is your support. I'm asking you to set aside your usual activities on July 3rd, go to the polling stations and vote for a new Russia. Only together will we be victorious.

SIMON MARKS: Boris Yeltsin's disappearance from the scene sent the Moscow rumor mill into overdrive. The Kremlin insists the President was merely suffering a cold, but many observers of his final public appearance at this graduation ceremony last Wednesday say the Russian leader appeared unsteady and a little too eager to salute the graduating class of cadets. Capitalizing on the President's disappearance, his opponent, Gennady Zyuganov. In the second round of campaigning, it's the Communist leader who's been the dancing candidate. In a string of campaign appearances, he'semphasized his vigor and demanded an official government report on the President's medical condition. But in Moscow at least there is little indication that the uncertainty over the President's health will affect the outcome of the election.

WOMAN ON STREET: [speaking through interpreter] As far as I understand it there's something the matter with his voice. It's nothing serious. He did so much during the election campaign I'm sure he'll find the strength to carry on working.

UNIDENTIFIED WOMAN: [speaking through interpreter] It's not just a question of Yeltsin, he's got a strong team and they know what they want and how to get it. His health doesn't worry me.

SIMON MARX: That Yeltsin team is markedly different now after the President struck a deal with the man who came third in the election's first round. General Alexander Lebed is now Boris Yeltsin's national security adviser and the man the President would like to see succeed him in the Kremlin. Today General Lebed has total access to the Russian leader and is one of a handful of men analysts consider to be a heartbeat away from the presidency. Behind the Kremlin's walls he quickly orchestrated a murky palace coup, persuading Boris Yeltsin to fire his controversial defense minister, seven generals, and three close associates, including his personal bodyguard. With Yeltsin absent from the public eye, General Lebed has been the most visible Kremlin official on the campaign trail, last week causing alarm overseas by lashing out at the West in an appearance before a group of nationalist supporters in Moscow. The General accused the West of polluting Russian culture. He described the Mormons and other religious groups operating here as "mold" and "filth;" he maintained there are just three recognized religions in Russia--Russian Orthodox, Islam, and Buddhism. He told one questioner: "You call yourself a Cossack, but your approach is Jewish." His speech was laced with aggressive nationalism.

GENERAL ALEXANDER LEBED, National Security Adviser: [speaking through interpreter] We are the most intelligent country in the world. 74 percent of the world's inventions came from Russia. They've been bought, stolen, or lost. But we must always remember that we are the most intelligent and the most wealthy nation, and we have the willpower and the common sense to make a real life for ourselves instead of a shameful, pitiful existence.

SIMON MARX: The General now says he meant no offense by his remarks and doesn't understand why western officials reacted so negatively to them.

GENERAL ALEXANDER LEBED: [speaking through interpreter] I have very good attitudes toward everyone. I love everyone. I am prepared to be friends with everyone, to trade with everyone, not to argue with anyone, and certainly not to fight them.

SIMON MARX: But General Lebed has spent his entire life preparing to fight people in defense of the nation. And this past weekend, he evidently felt at home as he watched a celebration marking the anniversary of the formation of a paratroop regiment. In the first round of the elections, the General campaigned on a platform of military reform and law and order. Observers are still scrambling to understand his political outlook in the wake of his sudden rise. But at his campaign headquarters in Moscow there is a sense of quiet confidence that Alexander Lebed is in the government to stay. And General Yuri Popov, who served alongside Mr. Lebed and is now his chief adviser, says there should be no debate about the General's democratic credentials.

GENERAL YURI POPOV, Lebed Adviser: [speaking through interpreter] Lebed firmly believes that he is a democrat. During his whole military service he resolved questions and problems in a democratic way. I'm not saying that he didn't expect people to carry out his orders, or that he's a soft person. He's a tough guy. But he feels strongly when something is right or wrong, and he has an ability to listen to people and draw the right conclusions based on discussions. So in this way he is a democrat.

MIKE McFAUL, Carnegie Endowment: Mr. Lebed would have a hard time defining democracy, what he means by democracy. He knows very little about very few things. Military reform, yes, he knows about that. How to fight a war, he knows about that. How to interact with the outside world--he knows nothing. This guy's only foreign experience, after all, was Afghanistan. He knows very little about economic reform. He doesn't know the difference between a protectionist, nationalist kind of economic policy and a liberal policy. He saw them on the table together, he couldn't tell you the difference. He doesn't know a lot about policy for a guy that occupies such a high position in the Kremlin.

SIMON MARX: Alexander Lebed may eventually have to fight to maintain his top Kremlin position. Some observers believe that he is of limited usefulness to Boris Yeltsin and may fall victim to the Kremlin's revolving door, which has facilitated the fall from grace of so many other political personalities during the last five years. But Alexander Lebed is critical to Boris Yeltsin's re- election strategy. The president needs the support of Lebed's 11 million first-round voters to secure victory tomorrow. He also needs a high voter turnout to counter the threat from dedicated Communist supporters. With Boris Yeltsin out of the spotlight and neither candidate holding large scale rallies, the second round campaign has failed to excite the public imagination, and the Kremlin is working overtime to overcome voter fatigue. Three weeks ago, 69 percent of voters cast their ballots in the first round of the election. Some analysts think that whether turnout matches that figure tomorrow on what is officially a public holiday will be critical in determining the final result.

MICHAEL McFAUL: If they get 70 percent turnout, like they did in the first round, Yeltsin wins by a landslide. If they get 65 percent, he wins with a fairly comfortable margin. Once it gets to 60 percent, however, the race becomes close. And once we get to 55 percent, Zyuganov starts to actually edge ahead of Mr. Yeltsin. Turnout is going to decide this entire election.

SIMON MARX: Banners have been hung above the Moscow streets, urging people to fulfill their civic duty and vote. They bear an implicitly pro-Yeltsin message, this one exhorting Muscovites to choose a democratic and renewed Russia. Stores in the capital have all been ordered to display a poster that contrasts the abundance of the present with the shortages of the past. City authorities are threatening to fine storekeepers who refuse to hang the poster in their windows. And the Yeltsin campaign has launched a new series of paid television advertisements reminding Russians of how bad life was in the old days. "The Communists haven't even changed their named," the commentator says. "They won't change their methods." Meanwhile, Communist candidate Gennady Zyuganov has struggled to get his message heard. Last night, Russian television, which has openly backed President Yeltsin, refused to broadcast the Communists' final election advertisement, saying payment wasn't received on time. Most analysts think Boris Yeltsin has done enough to secure re-election. But the campaign has taken a significant physical toll. A month ago Yeltsin aides said the President would vigorously pursue a whole new raft of reforms in his second term in office. The Carnegie Endowment's Michael McFaul says that's no longer on the agenda.

MICHAEL McFAUL: The first thing that President Yeltsin will do is go on holiday. He's a very tired, exhausted man. The second thing he'll do is form a coalition government where I would not be surprised to see Communists, or candidates and ministers sympathetic to the Communist cause in that government, which is to say that this is not going to be a sweeping new start of economic and political reform; this is going to be a lot of business as usual.

SIMON MARX: Business as usual for as long as Boris Yeltsin can physically maintain his grip on power. Behind the scenes, the struggle to succeed him is already underway. The presidential election campaign that has consumed this country for most of the year has ushered in a new period of instability, even before the final votes are cast. FOCUS - SUPREME COURT WATCH

MR. LEHRER: Finally tonight an end-of-the-term review of the U.S. Supreme Court. Elizabeth Farnsworth has that.

ELIZABETH FARNSWORTH: The nine Supreme Court justices recessed for the summer yesterday. They came down with fewer decisions overall this term, which began in October, than any court since the early 1950's, but the rulings they did make touched on key areas of social and political dispute. In the area of civil rights, the court defined equal treatment under the law in three major decisions. The first, U.S. V. Virginia, involved the state-run Virginia Military Institute, VMI, and whether its "men-only" admission policy was unconstitutional. Correspondent Tom Bearden filed this report on the case.

TOM BEARDEN: The five year old legal battle over the male-only tradition at the Virginia Military Institute or VMI has entered its final phase. Today the U.S. Supreme Court heard oral arguments over whether it is constitutional for a state to spend tax dollars to pay for schools that admit only members of one sex. Nestled in the Shenandoah Valley in historic Lexington, Virginia, VMI has admitted only men during its entire 156-year existence.

SPOKESMAN: You made a mistake. You correct it. You understand?

TOM BEARDEN: Intense and unrelenting harassment is an integral part of the daily routine for VMI underclassmen, so called "rat" cadets. It is physically and mentally challenging. Superintendent Major Josiah Bunting explains why VMI would prefer women not be part of that.

MAJ. GEN. JOSIAH BUNTING, Superintendent VMI: We believe that to introduce young women into such a culture as that would materially change the chemistry, and we think that to put what we are now at hazard in order to accomplish that simply is not an appropriate use of our resources.

MS. FARNSWORTH: Last month, the court ruled that the state of Virginia cannot justify keeping women out of VMI. Writing for the majority, Justice Ruth Bader Ginsburg said: "Women seeking and fit for a VMI quality education cannot be offered anything less under the state's obligation to afford them genuinely equal protection." The lone dissenter was Justice Antonin Scalia, who objected that with this decision, "reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this court." In another high profile civil rights case, the court considered a Colorado constitutional amendment on gay rights. Tom Bearden reported on the controversy over that amendment, which voters approved in 1992.

DEMONSTRATORS: [chanting] Hey, Hey, ho, ho, Amendment 2 has got to go.

TOM BEARDEN: The amendment that has attracted all this national attention states that no laws can be enacted which provide gays with protected status, quota preferences or a claim of discrimination. Kevin Tebedo, who heads Coloradans for Family Values, the group which pushed the measure onto the ballot, says the amendment was not intended to hurt gays. He says it was meant to ensure that gays not be given special privileges.

KEVIN TEBEDO, Coloradans for Family Values: The people in the state do not want to give homosexuals protected class. They believe they already have equal rights, and they do, and we've not removed any rights that any Colorado citizen had prior to Amendment 2. And they don't have--they have the same rights they always have had right now.

MS. FARNSWORTH: But the Supreme Court disagreed and upheld the Colorado Supreme court in holding Amendment 2 invalid. Writing for the majority, Justice Anthony Kennedy said, "We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws. In two other civil rights cases, the court looked at the congressional redistricting plans of Texas and North Carolina. Correspondent Kwame Holman reported on that.

KWAME HOLMAN: [June 13] Nearly all the blacks and Hispanics who first elected to the House of Representatives in 1992 came from congressional districts specifically drawn to include a majority of minority voters. The districts were drawn as a way of complying with changes in the Voting Rights Act. In North Carolina, Duke University Law Professor Robinson Everett filed a suit claiming majority minority districts deprive white voters of their constitutional rights.

ROBINSON EVERETT, Duke University: It was a use of racial classifications in a way that tended to divide the North Carolina population into different racial blocks, and that really offended me.

MS. FARNSWORTH: The Supreme Court agreed with Mr. Everett. Last month it ruled that legislative districts drawn to increase the representation of racial and ethnic minorities are unconstitutional if race was too dominant a factor in their design. Justice Sandra Day O'Connor wrote for the majority: "Race-neutral, traditional districting considerations must predominate over racial ones." Justice John Paul Stevens dissented: "The court's aggressive supervision of state action designed to accommodate the political concerns of historically disadvantaged minority groups is seriously misguided," he said. The court also ruled on several important First Amendment cases. It struck down as unconstitutional a key provision of Congress's effort in a 1992 law to protect children against sexually offensive and explicit material on cable television, and in a Colorado campaign spending case, the Justices ruled on how far the First Amendment goes to protect political free speech. Kwame Holman reported.

KWAME HOLMAN: Currently all candidates in this country for Congress or the presidency must adhere to contribution and spending limits set by the Federal Election Commission. But the constitutionality of the FEC limits now is being called into question thanks to a spending dispute that erupted between two other Colorado Senate candidates a decade ago.

MS. FARNSWORTH: At issue was how much political parties can spend if they are acting independently of the candidates. The court ruled they can spend as much as they want. Justice Stephen Breyer wrote the majority decision: "We do not see how a Constitution that grants to individuals, candidates and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties." And in criminal cases, the court took a pro-prosecution line on the issue of asset forfeiture. Correspondent Jeffrey Kaye reported:

JEFFREY KAYE: In 1992, Charles Wesley Arlt and James Elyu Wren were convicted of violating federal drug and money laundering laws. The men were sentenced to life in prison, but the government deprived them of more than their liberty.

CHARLES WESLEY ARLT, Defendant: They took everything we had. We didn't hide a dime. Every transaction was done by the law.

JAMES ELYU WREN, Defendant: The government took vehicles, automobiles, and they took aircraft.

JEFFREY KAYE: After the men were indicted on criminal charges, the government filed a civil forfeiture suit in order to confiscate their property. Wren's lawyer Shawn Perez says the government punished the men twice for the same time. That was double jeopardy, says Perez, a violation of the Constitution's 5th Amendment. The 9th Circuit Court of Appeals agreed.

MS. FARNSWORTH: But the Supreme Court overturned that court of appeals ruling, as well as one in Michigan in another forfeiture case. Writing for an eight to one majority, Chief Justice William Rehnquist said, "Civil forfeitures, we hold, do not constitute punishment for purposes of the double jeopardy clause."

MS. FARNSWORTH: Now four constitutional law professors with their assessment of this past term: Eugene Volokh from the University of California at Los Angeles; Douglas Kmiec from the University of Notre Dame; Kathleen Sullivan from Stanford University; and Bryan Fair from the University of Alabama. Thank you all for being with us. And starting with you, Kathleen Sullivan, how would you characterize the court's action in the civil rights cases? How would you generalize?

KATHLEEN SULLIVAN, Stanford University Law School: [Stanford] Well, if you ask whether the court was liberal or conservative on civil rights this term, the answer is both. In the race redistricting cases, it took a very conservative approach. It said that even though Democrats and Republicans routinely gerrymander districts to maximize party advantage, racial minorities, blacks and Hispanics in Texas, blacks in North Carolina, are not permitted to gerrymander districts to maximize the advantage of black voters or Hispanic voters in sending representatives to Congress. That was consistent with the court's trend toward color blindness in both race preferences in education, employment, and contracting, and race preferences in voting. But on the other hand, the court had two striking liberal decisions on civil rights this term: the gay rights decision coming out of Colorado and the women's rights decision coming out of Virginia. Those cases were quite striking and, and quite liberal, indeed. In the Colorado case, the court made its only real landmark decision of the term, a decision holding that for the first time gay people are protected by the 14th Amendment equal protection clause against laws that explicitly disadvantage them. Colorado had said in an amendment to its state constitution, uh, no homosexual person can bring any claim of discrimination, whether before a city council in Aspen, Denver, or Boulder, or before a court throughout the state. That, said the court, in a majority opinion by Justice Kennedy violates the guarantee of equal protection of the law because it makes gay people worse off than anybody else in Colorado, left-hand people, freckle-face people, red-headed people, hot dog vendors, all of whom could complain that they were discriminated against, so it was really a first and very striking, considering that it was only a decade ago that the court upheld a Georgia criminal law against gay sex. And finally in the women's rights decision, this is really perhaps the most stunning victory ever for women under the equal protection clause, and it's quite poetic that it was Justice Ginsburg who argued so many sex discrimination cases in favor of women's rights as an advocate on the other side of the bench. She wrote the majority opinion, saying, gender stereotypes will not do; you may not say that women are not tough enough, not aggressive enough to survive the adversative method of VMI's cadets. So on balance, a mixed record, conservative on race, liberal on gay and women's rights.

MS. FARNSWORTH: Professor Kmiec, what about free speech, mixed, as it was on civil rights? DOUGLAS KMIEC, Notre Dame Law School: [South Bend, Indiana] I agree with Prof. Sullivan. It is largely a mixed record, and one, one sees here kind of a disappearing conservative majority that we saw in the last term, producing kind of inconsistent results here. Briefly, just on the civil rights decisions, I think one of the real problems here is that we had not so much poetic results as political results. On free speech, there is--

MS. FARNSWORTH: Excuse me one minute. What do you mean political results?

PROF. DOUGLAS KMIEC: Well, if you look at the Romer case and you look at the VMI case, uh, you have examples there where the court seemingly says it's applying, uh, traditional legal standards. In the Romer case, it's rational basis review standard, which is intended to be highly preferential.

MS. FARNSWORTH: And remind people--Romer is the Colorado case.

PROF. DOUGLAS KMIEC: Romer is the--

MS. FARNSWORTH: The gay rights case.

PROF. DOUGLAS KMIEC: --gay rights case. And in VMI, the gender case, applying intermediate scrutiny but, in fact, uh, the results of those cases just simply do not follow from the application of those legal standards. In the Colorado case, uh, the Supreme Court almost totally disregarded Colorado's attempt to stay legally neutral in the sensitive issue of homosexuality and in VMI, uh, here you have a court that says it's trying to be sensitive to state and local interests but totally disregards the fact that there is an ample record demonstrating that single- sex education is highly efficient, highly productive, and, in fact, states have the historical role in allocating their educational dollars and assessing educational demand.

MS. FARNSWORTH: So you see a political agenda here?

PROF. DOUGLAS KMIEC: Well, I see political results here, and I see results that are not explained by, by legal theory and by precedent and jurisprudence. And--

MS. FARNSWORTH: Okay.

PROF. DOUGLAS KMIEC: --and that's very troubling, because--

MS. FARNSWORTH: Let me go to Prof. Fair just--

PROF. DOUGLAS KMIEC: Sure.

MS. FARNSWORTH: --on that subject for a minute. Prof. Fair, do you see the same kind of political results? BRYAN FAIR, University of Alabama Law School: [Tuscaloosa, Alabama] No, no, I don't. I disagree with my colleague from Notre Dame. I think that the court in the Colorado case correctly decided that gay and lesbian people have civil rights and can present claims of discrimination in a court of law pursuant to the protection clause. In the VMI case, I see the court saying that separate but equal is unconstitutional in the gender context, as it said before in the race context. Uh, and I see the court in the redistricting cases interfering in the local political processes that some members of the court often say the court should not interfere with, so I see the cases as inconsistent. I expected, given the Colorado case and the VMI case, that the court would decide the redistricting cases differently, and finally admit that there's a difference between racial caste producing legislation and programs designed to aid minorities and others in political representation.

MS. FARNSWORTH: Prof. Volokh, we still seem to be on the same civil rights area. It is one of the most important areas. How do you see the court's actions, and how--do you--where do you come down on this issue of political results? EUGENE VOLOKH, UCLA Law School: [Los Angeles] Well, it's interesting. It's very hard to tell what's going on in the Justices' heads. I think that, by and large, they try to follow what they see as the law. At times, there is some uncertainty in the law, and there perhaps one's ideology can't help but influence these things. It's funny, people are saying, well, it's very liberal, very conservative. I think that the decisions that we see are actually very moderate politically decisions where the court really is, for better or worse, politically more or less where the country is. On the redistricting cases, the race redistricting cases--

MS. FARNSWORTH: Excuse me. You don't see it as very strong one way or the other, right in the middle?

PROF. EUGENE VOLOKH: Certainly not in these cases.

MS. FARNSWORTH: How about inconsistent? There seems to be a general agreement there is some inconsistency.

PROF. EUGENE VOLOKH: Well, you know, you could say, well, they're inconsistent because they are interfering with states here or not interfering with states here. Liberals would like them to interfere with states in certain respects, and not in other respects. Conservatives would like interference sort of the other way around and non-interference the other way around. You know, it's hard to tell from these three cases whether they're inconsistent with one another. I agree with Prof. Kmiec that Romer V. Evans, the Colorado Amendment 2 case, seems to be quite inconsistent with a lot of other cases that it purports to be following. I think that the VMI case is actually quite consistent with the court's sex-based jurisprudence, and Prof. Kmiec may or may not be right that there are a lot of efficiencies, a lot of benefits to single-sex education. But the court has generally said that by and large sex classifications are impermissible, even when they're practically beneficial in some respects. This is just a matter of principle, that we by and large ought not have sex classifications, even when there are some efficiencies to be gained from that. And I do think that is in today's America, that is a pretty moderate position. The same thing goes for the race-based redistricting cases. Prof. Fair argues that, that the court should distinguish essentially benign race classifications from mean-spirited kind of malign case producing race classifications. There are arguments to be made for that. I don't quite agree with them. And I think, by and large, the country is on average relatively uneasy about it. The country's fairly skeptical about race classifications, although many people are willing to tolerate some in narrow areas to a narrow extent. This is pretty much where the court is going too, a great skepticism towards racial classification, but leaving the door open for the truly unusual and sort of emergency critical situations where there are narrow, narrowly-tailored race-based solutions. So I think on those cases--

MS. FARNSWORTH: Kathleen--

PROF. EUGENE VOLOKH: --it's a pretty moderate, moderate position.

MS. FARNSWORTH: Kathleen Sullivan, moving on to something that we did not cover in the introductory piece, uh, business law. Yesterday the court came down with a very important case having to do with savings and loans. Is this court--could you tell us just a bit about that--is this court pro-business, would you characterize it that way?

PROF. KATHLEEN SULLIVAN: Yes. Well, there were three significant rulings in favor of property rights, you might say, this term. One was yesterday's decision which said that the government, even the federal government, has to keep its contracts--this case yesterday said that the federal government had essentially schnookered a group of savings and loans by changing the accounting rules in mid stream. It got them to buy-outs and failing thrifts and on the promise of certain accounting rules. Then it changed the accounting rules, costing them their ability to function. What the court said yesterday is everybody has to keep their contracts, including the United States Government, and that's a really a very conservative opinion in the sense that the framers were always worried that government would abrogate its contracts and yesterday the court said you can't do that. But there were two other business decisions during the term that might be noted. One was the court finally put a limit on punitive damages. In a case involving a BMW with a bad paint job several months ago, the court said there are some limits the Constitution imposes on punitive damages; you just can't get millions of dollars because you had a bad paint job. That--the court has made a bunch of false starts toward that holding. This term it finally said juries can't run wild with punitive damages, and, of course, corporations who face those kinds of claims are very happy about that decision. And finally, in a case called 44 Liquor Mart, Inc., the court held that liquor advertisers have a right to advertise. The case came up in Rhode Island, where there was a ban on liquor price advertising for big discount operators. It was a form of protectionism really for Mom and Pop liquor stores. The court struck that down under the First Amendment free speech clause, said advertising is protected speech, just like other kinds of speech, and most important, the court made clear that there's no vice exception to the free commercial speech doctrine. It used to be thought that maybe if you advertised liquor or tobacco or gambling, maybe that kind of advertising had last First Amendment protection than advertising shampoo. The court has now said no, we apply one First Amendment to all advertising and, of course, free speech through advertising has great implications for corporations and may have some implications for upcoming issues about tobacco regulation that the Clinton administration is proposing.

MS. FARNSWORTH: Douglas Kmiec, looking at these cases, looking at the other cases we've been discussing, did you learn anything about the position of particular Justices, or the role they play?

PROF. DOUGLAS KMIEC: Well, I think we still see that Justice O'Connor and Justice Kennedy play a pivotal role in terms of, uh, forming majorities. Obviously, Justice Ginsburg came into her own, her background with regard to women's issues came to the floor in the VMI case. I think one case we shouldn't overlook in the race area, if I might, is the Hopwood decision dealing with the University of Texas School Admission Program.

MS. FARNSWORTH: Which came down yesterday.

PROF. DOUGLAS KMIEC: It came down yesterday, and this is not a full opinion. This is a denial of review. Now Justices Souter and Ginsburg did write a separate opinion with regard to that denial explaining their position. Uh, the University of Texas had been running in its law school basically dual admission programs, one for minorities and one for others, applying separate standards and separate committees. The Fifth Circuit Court of Appeals held in a rather strongly worded opinion that the use of race, except for remedial purposes, is never acceptable under the Constitution. Uh, a good number of people thought the Supreme Court would take that case. Prof. Sullivan's colleague, Prof. Tribe, argued most strongly in a brief that the court should, uh, and I think that it's quite significant that the court denied review. Now Justice Souter and Justice Ginsburg tried to minimize the significance of, of the denial of review, uh, but in point of fact, I think this sends a signal that is consistent with the voting rights cases, and which is somewhat ahead of perhaps the political curve in the country that race is just an inappropriate factor, except for remedy, in terms of public decision-making.

MS. FARNSWORTH: Bryan Fair, briefly your response to that, but also I really want to talk for--we have a short amount of time left--I want to hear what you think about the role of various Justices too.

PROF. BRYAN FAIR: Well, first, my reaction to the Hopwood denial is, is, is very different. I think that the paragraphs provided by Ginsburg and Souter indicate nothing more than that the court thought there were bad facts, that the record had changed between 1992 and 1994. I don't think this is a watershed for people who would rather not use race in admissions. I think that the Fifth Circuit opinion is limited to the Fifth Circuit now. I think that Tribe, Laurence Tribe, is correct, that the court should have taken the case because of what the panel did to Bakke, but we will have this case before the court within the next couple of years.

MS. FARNSWORTH: And briefly on the different Justices.

PROF. BRYAN FAIR: My sense is that we often refer to this court as the Rehnquist court because he's the Chief Justice. But my sense is that it's really the O'Connor court, that she perhaps more than anyone else is the pivotal vote in important cases, whether the case is a case like the VMI case or the redistricting case, uh, and on issues like affirmative action, something important to the country, as she goes, so goes the court.

MS. FARNSWORTH: Prof. Volokh, your view on the Justices.

PROF. EUGENE VOLOKH: Definitely. It's the O'Connor-Kennedy court, probably, but, indeed, O'Connor has a very important role because O'Connor and Kennedy are swing votes. They're basically people, more or less, of the center right, and, uh, it's their swing votes that make it a relatively center-right court, not as far right on some issues as say Scalia and Thomas and Rehnquist would like, but certainly not, not a relatively left court either, except perhaps in some free speech issues, where of course right and left have been shifting a lot, at least in judicial debates, but also in political debates. The interesting things, besides kind of reaffirming the O'Connor-Kennedy, the importance of O'Connor and Kennedy, uh, about this past term is Thomas, that last year, Justice Thomas had some very interesting opinions, very, very logically reasoned, very well written opinions, and this year, he's been adding to that. They are in some respects quite persuasive, I think generally quite respectable. One of the things that they show him is that they show him as somebody who has a particular vision of the Constitution, various provisions of the Constitution, and who is quite willing to advocate it, sometimes in the face of contrary precedent. He is somebody who is sometimes willing to change the existing law that he believes is unsound and explain, say honestly that this would be a change, but explain why this is right. So in that respect, he really is a very interesting voice on the court, in many respects an interesting comparison to say Justice Souter and Justice Breyer and to some extent Justice O'Connor, who have different political perspectives but are much less willing to change. And one example--

MS. FARNSWORTH: Prof. Fair, we have just a couple of seconds left.

PROF. BRYAN FAIR: I would just say as--about Justice Thomas, he has shown, uh, in this term and in the last several terms that he is the ideologue that many people thought he was. He has an agenda. His decisions, many think, are not well written or well reasoned but are political tracks.

PROF. EUGENE VOLOKH: Well, who--

MS. FARNSWORTH: I have to break this off. Thank you all for being with us.

PROF. KATHLEEN SULLIVAN: Thank you. RECAP

MR. LEHRER: Again, the major stories of this Tuesday, officers found large quantities of firearms and explosives in the homes of the 12 members of an Arizona militia arrested yesterday. The so- called Viper militia group is charged with plotting to blow up government buildings. And a power blackout cut off electricity in 15--in parts of 15 western states. Utility officials could not immediately explain the disruptions in service from California to Colorado. We'll see you tomorrow night. I'm Jim Lehrer. Thank you and good night.