The NewsHour with Jim Lehrer

JIM LEHRER: Good evening, I'm Jim Lehrer. On the NewsHour tonight: Our summary of the news; the second day of the 9/11 Commission's public hearings-- we have extended excerpts plus reaction from two commissioners, Jamie Gorelick and John Lehman; and then, today's Supreme Court arguments over removing "God" from the Pledge of Allegiance, as reported by Marcia Coyle of the "National Law Journal."

NEWS SUMMARY

JIM LEHRER: The 9/11 Commission heard sharply different views today of President Bush's handling of the war on terror. Former counter-terror Chief Richard Clarke testified the Clinton administration's highest priority was fighting terror. He said the Bush administration did not treat it urgently. CIA Director George Tenet praised officials in both administrations and he said he never sensed any "lack of urgency" about terror after President Bush took office. We'll have extended excerpts and analysis of today's testimony right after this News Summary. Spain held a state funeral today for the victims of the Madrid train bombings. Secretary of State Powell was among the world leaders who attended. We have a report narrated by Richard Vaughan of Associated Press Television News.

RICHARD VAUGHAN: Dressed in black, Spain's outgoing President Jose Maria Aznar joined dignitaries, royalty and bereaved family members-- all mourning the victims of the Madrid train bombings. The state funeral was led by king Juan Carlos on behalf of relatives of the 190 people killed. British Prime Minister Tony Blair, with his wife Cherie, was among a dozen world leaders who flew in for the service. The French president, Jacques Chirac, joined Britain's Prince Charles, Monaco's Prince Albert and the German Chancellor Gerhard Schroeder at the service. The ceremony was broadcast live on a giant-screen television outside the cathedral and in the city center. The mass brought much of Madrid to a standstill.

JIM LEHRER: Also today, a Spanish judge charged two more suspects in the bombings. That makes 11 people accused so far. A railroad worker in France found a bomb under the tracks of the state-run railway today. It was spotted on a line about 105 miles southeast of Paris. Authorities defused the bomb safely. There was no immediate claim of responsibility. The new leader of Hamas in Gaza denied today the group plans to attack U.S. targets. Abdel Aziz Rantisi said Hamas was focused solely on Israel. He said, "We are resisting the occupation, nothing else." Hamas had made veiled threats against the United States on Monday. That was after Israel killed Sheik Ahmed Yassin, the group's founder. Today, another Hamas leader warned Israeli Prime Minster Sharon was now a target himself. The U.S. Temporarily closed its embassy in the United Arab Emirates today after a specific threat. Local police later arrested a man in connection with that threat. U.S. Embassies have been on heightened alert throughout the Middle East since Israel's killing of Sheik Yassin on Monday. The U.S. Supreme Court heard arguments today on removing the words "under God" from the Pledge of Allegiance. An atheist from Sacramento, California, Michael Newdow, said the wording violates the separation of church and state. But lawyers for his daughter's school district said the pledge is a "ceremonial, patriotic exercise." The two sides spoke later outside the court.

MICHAEL NEWDOW: I am a parent. I have an absolute right to know that when my child goes to the public schools she won't be indoctrinated with any religious dogma. I'm not asking them to say that there is no God. I want government to stay out of the religious business so every religious opinion gets respected equally by the government.

TERENCE CASSIDY: The Supreme Court in several of its opinions have distinguished between our ability to reference God as an acknowledgment of religion and the role of religion in American life. It's not an endorsement of religion. It's not favoring one religion over another or religion over non-religion.

JIM LEHRER: The high court must first decide whether Newdow had legal standing to file suit in the first place. That's because the mother of his daughter opposes the lawsuit, and she has primary custody. We'll have more on this story later in the program. The Bush administration with held cost estimates for the new Medicare bill. Our health correspondent Susan Dentzer reports.

SUSAN DENTZER: Chief Medicare actuary Rick Foster told the House Ways and Means Committee that he'd come close to resigning last year. That's when then-Medicare Chief Tom Scully blocked his efforts to release cost estimates. Those numbers pegged the cost of last year's Medicare reforms at $539 billion over ten years, roughly a third more than the $395 billion estimate ultimately made by the Congressional Budget Office.

RICHARD FOSTER: I recommended Mr. Scully for two particular technical analyses, that we had completed these estimates and they should be released. By this point in time, he'd made it clear that we were not to respond directly to requests from Congress anymore, but instead we were to give requests to him and he would decide what to do with it.

REP. CHARLES RANGEL: Did you feel that this type of response from Mr. Scully in any way interfered with your professionalism?

RICHARD FOSTER: Yes sir, I thought it was inappropriate. What I perceived was that some responses went out and some responses did not go out, and it struck me as a political basis for making that decision. I considered that inappropriate and, in fact, unethical.

SUSAN DENTZER: Foster said he'd been advised at the time by a Medicare attorney that Scully did have the legal authority to block release of the estimates. He said he feared being fired. Scully has defended his actions, saying he was concerned Foster was being drawn into a political battle between democrats and republicans. Foster also said today that others in the Bush administration knew about his higher estimates and had tried to mediate his dispute with Scully. Meanwhile, Republican Ways and Means Committee Chairman Bill Thomas stressed that neither the administration nor CBO estimates were likely to prove correct.

REP. BILL THOMAS: All of us know no one has the right answer and time will likely show that both of the estimates are wrong. The goal is to examine the assumptions which produced the numbers and determine if the assumptions underlying the numbers are reasonable.

SUSAN DENTZER: Foster later conceded the episode with Scully has led to a constructive outcome-- an agreement that from here on out, any of his cost estimates would be shared freely with Congress.

JIM LEHRER: The European Union fined Microsoft more than $600 million today for anti-trust violations. The ruling said the software giant abused its "near monopoly" to shut out competitors. In addition to the fine, the EU ordered Microsoft to offer a stripped-down version of "Windows" without features like a digital media player. The company also has to provide coding to let rival programs work with Windows. The EU's anti-trust chief, Mario Monti, said the ruling is "balanced."

MARIO MONTI: We are not expropriating Microsoft's intellectual property. We are also not breaking new legal ground, neither for Europe nor indeed for the United States. We are simply ensuring that anyone who develops new software has a fair opportunity to compete in the marketplace.

JIM LEHRER: Microsoft said it would appeal the ruling, but not the fine. The company's CEO, Steve Ballmer, said the EU's action would stifle creativity.

STEVE BALLMER: We believe that every company should have the ability to improve its products to meet the needs of consumers. The commission's actions would essentially freeze our technology where it is today, and that's not good for consumers or for software developers. We will continue to work in good faith to try to address the commission's concerns while protecting the principle of innovation.

JIM LEHRER: Microsoft will ask European courts to freeze the ruling while it pursues its appeals. That process could take years. There was good news for U.S. manufacturing last month. The Commerce Department reported today orders for big-ticket durable goods rose 2.5 percent in February. Increased demand for cars and airplanes led the way. On Wall Street today, the Dow Jones Industrial Average lost 15 points to close at 10048. The NASDAQ rose more than seven points to close at 1909. And that's it for the News Summary tonight. Now it's on to: The 9/11 hearings, plus commissioners Lehman and Gorelick; and God in the Pledge of Allegiance.

FOCUS - WHAT WENT WRONG?

JIM LEHRER: Day two of the public 9/11 Commission hearings. Today's focus was on efforts to gather intelligence on Osama bin Laden prior to the 9/11 attacks. Kwame Holman starts our coverage.

KWAME HOLMAN: A 9/11 Commission report on intelligence, read today following months of closed-door interviews with top government officials, showed U.S. Intelligence operatives were well aware of Osama bin Laden's terrorist activities as early as 1997. Tracking bin Laden's movements in Afghanistan in hopes of capturing him became a top CIA priority, but after the bombings of two U.S. embassies in Africa in august 1998, President Clinton signed a directive giving the CIA the authority to take offensive action against bin Laden.

CHRISTOPHER KOJM: The CIA's Afghan assets reported on about half a dozen occasions before 9/11 that they had considered attacking bin Laden, usually as he traveled in his convoy along the rough Afghan roads. Each time, the operation was reportedly aborted. Several times the Afghans said that bin Laden had taken a different route than expected. On one occasion, security was said to be too tight to capture him. Another time they heard women and children's voices from inside the convoy and abandoned the assault for fear of killing innocents in accordance with CIA guidelines.

KWAME HOLMAN: The CIA recruited proxies in Afghanistan to do its work, but their reliability was questionable. The CIA flew unmanned reconnaissance planes over suspected al-Qaida camps, but there was disagreement over whether to arm the vehicles with missiles. What the Commission found, according to this morning's report, was that the CIA And the president's National Security Council held conflicting views on just how far they should go to "kill" Osama bin Laden.

CHRISTOPHER KOJM: Senior NSC staff members told us they believed the president's intent was clear: He wanted bin Laden dead. But if the policymakers believed their intent was clear, every CIA Official interviewed on this topic by the commission, from DCI Tenet to the official who actually briefed the agents in the field, told us they heard a different message. What the United States would let the military do is quite different, Tenet said, from the rules that govern covert action by the CIA. CIA senior managers, operators, and lawyers uniformly said that they read the relevant authorities signed by President Clinton as instructing them to try to capture bin Laden, except in the defined contingency. They believed that the only acceptable context for killing bin Laden was a credible capture operation. Where NSC staff and CIA officials agree is that no one at CIA, including Tenet and Pavitt, ever complained to the White House that the authorities were restrictive or unclear. Berger told us: "If there was ever any confusion, it was never conveyed to me or the president by the DCI or anybody else."

KWAME HOLMAN: CIA Director George Tenet, who's tenure has spanned both the Clinton and Bush administrations, was first to testify today. Former Navy Secretary John Lehman asked tenet if the CIA tried to avoid assassinating bin Laden.

JOHN LEHMAN: Mr. Clarke and others, as we've heard in the staff statement this morning, have stated that there is a very deeply entrenched culture in the directorate of operations against covert operations, and especially and strongly against assassination. Do you share Mr. Clarke's assessment?

GEORGE TENET: No, I don't. Nobody ever talks about assassinations frivolously, ever. So one and the other... but the idea that, you know, that they're risk-averse, couldn't get the job done, weren't forward-leaning... I'm sorry. I've heard those comments, and I just categorically reject them.

JOHN LEHMAN: Do you also reject Mr. Clarke's statement that at least two of the most senior officials in DO said they'd resign rather than carry out...

GEORGE TENET: Well, I don't know that, because I think that was something you learned in your staff interviews.

SPOKESMAN: You learned that.

GEORGE TENET: And I don't... and look, this is an issue... there's some deeply felt... held views here. But I mean, I don't know who said it and why they said it and... here you go, sir.

KWAME HOLMAN: Commissioner Fred Fielding asked if capturing or killing bin Laden would have stopped al-Qaida's Sept. 11 attacks.

FRED FIELDING: Do you think if you had gotten, in any way, shape or form, bin Laden in the year 2001 you would have prevented the two 9/11 attacks?

GEORGE TENET: Commissioner Fielding, I don't believe so. I believe that this plot line was off and running. Khalid Sheikh Mohammed was in the middle of it; operators were moving into this country. Any understanding of this, we certainly understand that they had the operational flexibility to decide what to do, but this plot was well on its way. Decapitating one person, even bin Laden in this context, I do not believe we would have stopped this plot.

KWAME HOLMAN: Still, former Senator Bob Kerrey expressed frustration, asking if the CIA knew a terrorist attack was a real possibility during the summer of 2001, why more wasn't done to prevent it.

FORMER SEN. BOB KERREY: I don't understand why we didn't put an order out to get everything the FBI had, to get everything that everybody had in, and to try to determine whether or not it was possible an attack was going to occur in the United States of America. I just don't understand it, given the level of urgency that was demonstrated by Dr. Rice in talking to Mr. Clarke and demonstrated as well by the president in talking to you. Now, tell me if I got it wrong.

GEORGE TENET: I believe that... I think people were doing everything they knew how to do to try and figure out what this was and what this wasn't. I did not... I didn't get a sense of a lack of urgency on the part of people in this time period.

FORMER SEN. BOB KERREY: I appreciate that, director tenet, but I don't understand-- and I'll ask Dick Clarke later because he was chairing the CSG's all summer-- I mean, brings the FAA and why in god's name doesn't he say, "you know, there's a possibility there's going to be a hijacking, and it could be a domestic hijacking," and it doesn't become a part of their planning.

GEORGE TENET: I always...

FORMER SEN. BOB KERREY: It doesn't become a part of their planning. They don't change the rules dealing with hijacking. And I'll have a chance to ask director... Dick Clarke that later, but I mean we had all-- and I appreciate you've got this wall that was separating intel and law enforcement and after patriot and after 9/11 that changed-- but even before that, it seems to me, given the level of concern about a possible domestic attack, that we should have swept that information up to try to find out if there was anything out there that indicated an attack was going to occur in the United States. You're... I guess there's no question here, it's just a declaratory. ( Laughter )

KWAME HOLMAN: Commission Vice Chairman Lee Hamilton.

LEE HAMILTON: We had... in both administrations they presented very long lists of things that they had done prior to 9/11 to keep the people secure. And I know those steps were taken with conviction and utter sincerity, and I don't believe there's any high-level public official that I've ever met that would not act to protect the American people. But the over-arching fact, of course, is that we did not do it, and we lost a lot of people. So the question that we have to address, and here I need some help from you, is why were we unable to do it.

GEORGE TENET: Three layers of answers. We didn't steal the secret that told us what the plot was. We didn't recruit the right people or technically collect the data, notwithstanding enormous effort to do so. Macro-issue. Second issue: We didn't integrate all the data we had properly, and probably we had a lot of data that we didn't know about that if everybody had known about, maybe we would have had a chance. I can't predict to you one way or another. But you also had systemically a wall that was in place between the criminal side and the intelligence side. What's in a criminal case doesn't cross over that line. Ironclad regulations -- so that even people in the criminal division and the intelligence divisions of the FBI couldn't talk to each other, let alone talk to us or us talk to them. The truth is, is here's the unassailable fact: The terrorist is a smart operational animal. He's going to figure all this out. He's going to figure out your watch list systems better and your visa systems better. He's going to infiltrate your country with phony documents and passports. And then the question's going to be, how good are you inside your country in understanding what these groups are doing; how good is your domestic intelligence capability. So those are different layers of the same problem, sir. But, you know, there's obviously that tactical thing that didn't go right. The cost... you know, we... you know, I can't... never going to get out of my head.

KWAME HOLMAN: Samuel Berger followed tenet. He served as national security advisor to President Clinton. Following on the staff report, commissioner Richard Ben-Veniste asked if Mr. Clinton's orders to kill Osama bin Laden were clear.

RICHARD BEN-VENISTE: With respect to the authorization for the use of force given to Director Tenet, he was reluctant to go into specifics, but he did say that there was no request for authority that was denied by President Clinton. Could you shed light on that as well?

SAMUEL BERGER: I will try, Mr. Commissioner. I've read some of these reports in the press and otherwise. Let me say first of all, there could not have been any doubt about what President Clinton's intent was after he fired 60 Tomahawk Cruise missiles at bin Laden in August '98. I assure you, they were not delivering an arrest warrant. The intent was to kill bin Laden. Number one, his overall intent was manifest in august '98. Number two, I believe the director understood, and I think he reiterated today, that we wanted him to use the full measure of the CIA's capabilities. Only the CIA can judge what its capabilities are, and that then defines the scope of the authorization. We gave the CIA every inch of authorization that it asked for. If there was any confusion down the ranks, it was never communicated to me nor to the president. And if any additional authority had been requested, I am convinced it would have been given immediately.

JIM LEHRER: This afternoon, Richard Clarke testified before the commission. His criticisms of the Bush administration contained in his new book have attracted wide attention. Again, Kwame Holman reports. .

KWAME HOLMAN: Richard Clarke was considered the top Washington when he served in the Clinton administration. When the Bush administration came in, National Security Advisor Condoleezza Rice asked Clarke to stay on as counterterrorism advisor. That's the job he was in on Sept. 11.

RICHARD CLARKE: I welcome these hearings because of the opportunity they provide to the American people to better understand why the tragedy of 9/11 happened and what we must do to prevent a reoccurrence. I also welcome the hearings because it is finally a forum where I can apologize to the loved ones of the victims of 9/11, to them who are here in the room, to those who are watching on television, your government failed you. Those entrusted with protecting you failed you. And I failed you. We tried hard but that doesn't matter because we failed. And for that failure, I would ask once all the facts are out for your understanding and for your forgiveness.

KWAME HOLMAN: Clarke quit the Bush administration in 2003 and in his new book and during interviews he's given this week to promote it, Clarke has charged President Bush didn't grasp the urgency of the al-Qaida terrorism threat prior to the Sept. 11 attacks. Former Democratic Congressman Tim Roemer asked the first questions in this afternoon's session.

FORMER REP. TIM ROEMER: With respect to the Bush administration from the time they took office until Sept. 11, 2001, you had much to deal with: Russia, China, G-8, the Middle East. How high a priority was fighting al-Qaida in the Bush administration?

RICHARD CLARKE: I believe the Bush administration in the first eight months considered terrorism an important issue but not an urgent issue. They... well, President Bush himself says as much in his interview with Bob Woodward in the book "Bush at War." He said I didn't feel a sense of urgency. George Tenet and I tried very hard to create a sense of urgency by seeing to it that intelligence reports on the al-Qaida threat were frequently given to the president and other high-level officials. There was a process underway to address al-Qaida. But although I continued to say it was an urgent problem, I don't think it was ever treated that way.

KWAME HOLMAN: Roemer referred to Clarke's January 2001 request to national security advisor Rice for an urgent meeting on al-Qaida with top- level government officials.

FORMER REP. TIM ROEMER: Do you get a response to this urgent request for a principals' meeting on these and how does this affect your time frame for dealing with these important issues?

RICHARD CLARKE: I did get a response. The response was that in the Bush administration I should in my committee counterterrorism security group should report to the deputies' committee which is a sub cabinet level committee and not to the principals, and that therefore it was inappropriate for me to be asking for a principals meeting. Instead there would be a deputies meeting.

FORMER REP. TIM ROEMER: So does this slow the process down to go to the deputies rather than to the principals or a small group as you previously had done?

RICHARD CLARKE: It slowed it down enormously, by months.

KWAME HOLMAN: Former Washington State Senator Slade Gorton.

FORMER SEN. SLADE GORTON: Assuming that the recommendations that you made in... on January 25 of 2001 based on blue sky, including aid to the northern alliance which had been an agenda item at this point for two-and-a-half years without any action, assuming that there had been more predator reconnaissance missions, assuming that that had all been adopted, say, on January 26, the year 2001, is there the remotest chance that it would have prevented 9/11?

RICHARD CLARKE: No.

FORMER SEN. SLADE GORTON: It just would have allowed our response after 9/11 to be perhaps a little bit faster?

RICHARD CLARKE: Well, the response would have begun before 9/11.

FORMER SEN. SLADE GORTON: But... yes, but we weren't going to... there was no recommendation on your part or anyone else's part that we declare war and attempt to invade Afghanistan prior to 9/11.

RICHARD CLARKE: That's right.

KWAME HOLMAN: Former Illinois Governor Jim Thompson questioned Clarke's criticisms of President Bush given that the president had called for a plan to establish a new strategy to combat al-Qaida.

FORMER GOV. JAMES THOMPSON: You said that the strategy changed from one of rollback with al-Qaida over the course of five years which it had been, which I presume is the Clinton policy, to a new strategy that called for the rapid elimination of al-Qaida, that is in fact the time line. Is that correct?

RICHARD CLARKE: It is, but it requires a bit of elaboration. I tried to insert the phrase early in the Bush administration in the draft NSPD that our goal should be to eliminate al-Qaida, and I was told by various members of the deputies committee that that was overly ambitious, that we should take the word "eliminate" out and say "significantly erode." And then, following 9/11 we were able to go back to my language of "eliminate" rather than "significantly erode." And so the version of the national security presidential decision directive that President Bush finally got to see after 9/11 had my original language of "eliminate," not the interim language of "erode."

KWAME HOLMAN: It was former Navy Secretary John Lehman who turned attention back to Richard Clarke's new book.

JOHN LEHMAN: I've watched you labor without fear or favor in a succession of jobs where you really made a difference. And so when you agreed to spend as much time as you did with us in, as you say, 15 hours, I was very hopeful. And I attended one of those all-day sessions and read the other two transcripts, and I thought they were terrific. I thought, here we have a guy who can be the Rosetta stone for helping this commission do its job, to help to have the American people grasp what the dysfunctional problems in this government are. And I thought you let the chips fall where they may. But now we have the book. And I hope you're going to tell me, as you apologize to the families for all of us who were involved in national security, that this tremendous difference- - and not just in nuance, but in what it is you choose to... the stories you choose to tell... is really the result of your editors and your promoters, rather than your studied judgment, because it is so different from the whole thrust of your testimony to us.

RICHARD CLARKE: Thank you, John. (Laughter ) Let me talk about partisanship here, since you raise it. I've been accused of being a member of John Kerrey's campaign team several times this week, including by the White House. So let's just lay that one to bed. I'm not working for the Kerrey campaign. Last time I had to declare my party loyalty it was to vote in the Virginia primary for president of the United States in the year 2000 and I asked for a Republican ballot. I worked for Ronald Reagan, with you. I worked for the first President Bush, and he nominated me to the senate as an assistant secretary of state. I worked in his White House and I've worked for this President Bush. I'm not working for Senator Kerrey. Now, the fact of the matter is I do co-teach a class with someone who works for Senator Kerrey. That person is named Randy Beers. That, I don't think makes me a member of the Kerrey campaign. The White House has said that my book is an audition for a high-level position in the Kerrey campaign. So let me say here as I am under oath that I will not accept any position in the Kerrey administration, should there be one -- on the record, under oath. Now as to your accusation that there is a difference between what I said to this commission in 15 hours of testimony and what I am saying in my book and what media outlets are asking me to comment on, I think there's a very good reason for that. In the 15 hours of testimony, no one asked me what I thought about the president's invasion of Iraq. And the reason I am strident in my criticism of the president of the United States is because by invading Iraq-- something I was not asked about by the commission, but something I chose to write about a lot in the book-- by invading Iraq, the president of the United States has greatly undermined the war on terrorism.

KWAME HOLMAN: The last witness of the day was Assistant Secretary of State Richard Armitage. He was asked if he agreed with Richard Clarke that the Bush administration didn't move fast enough on the terrorism threat prior to 9/11.

RICHARD ARMITAGE: No, I don't. But I'd like to say the words of Samuel Clements come to mind, and that is even though you're on the right track, you can get run over if you're not going fast enough. And I think it is the case, it's certainly in hindsight that we weren't going fast enough. Now, you can make your own judgments about whether we were moving faster or slower than other administrations. But there were a lot of complex issues, and we thought we were getting or trying to get our arms around all of them and not just pieces of them.

KWAME HOLMAN: The 9/11 Commission has scheduled three more rounds of pubic hearings focusing on law enforcement efforts to combat terrorism, and on the Sept. 11 attacks themselves. The Commission expects to release its final report in July.

JIM LEHRER: And to Margaret Warner.

MARGARET WARNER: For reaction and analysis now, we turn to two members of the 9/11 Commission. John Lehman was navy secretary in the Reagan administration; Jamie Gorelick served as Defense Department general counsel and then deputy attorney general in the Clinton administration.

Welcome to you both. Let's start with the basic indictment -- the basic charge leveled by Richard Clarke which was that unlike in the Clinton administration for the Bush administration terrorism was an important but not urgent matter. Ms. Gorelick, do you agree with that? Is that your conclusion?

JAMIE GORELICK: It seems to me that the objective evidence shows that the Bush administration had different priorities, but all of the witnesses who appeared before us from the Bush administration-- and they were very, very able -- essentially said that it was important to them and they couldn't disaggregate their time or show or demonstrate where it fell in their priority. So this is something we're going to have to go back and counsel with each other on before we come to a conclusion.

MARGARET WARNER: Mr. Lehman, have you come to any conclusion about whether the Bush administration took the threat urgently or seriously enough?

JOHN LEHMAN: Well, I think the disappointment that was evident in hearing today certainly from me and from some others about Dick Clarke's testimony was he was very eloquent in our interviews and the long time that we spent with him about the lack of effective intelligence provided in a timely basis to the decision-makers in both administrations. And I think that to the effect there was not a sense of urgency in the Bush administration, it's because other than Dick Clarke who was for at least ten years telling people that it was an urgent problem, the official sources of intelligence coming to the president did not break this out from the other urgent problems in a sufficient form. And that's what we're really trying, all of us, to get at and to fix because this commission ultimately is not a blame game. We're going to let the facts speak for themselves -- but we owe the country a set of changes and reforms to fix those things that have really seriously gone wrong.

MARGARET WARNER: Ms. Gorelick, follow up on that. How much of a problem do you think it was, the nature of the intelligence the president was receiving?

JAMIE GORELICK: Well, John is certainly right that there was an actionable intelligence. There was nothing to say they're going to hit us at home. They're going to hit us in New York. They're going to hijack planes. There were hints of those, but there was an enormous sense of urgency between April and the actual attack. I think most intelligence experts would say that they had never seen such level of chatter, of reporting as was coming at senior executives in the executive branch. And Tenet, I think, was running around the town with his hair on fire. It's interesting to hear administration officials now play that back and say, well, there were always threats and so forth. And it appears to me that perhaps they did not know how to compare what they were hearing in that summer to what their predecessors had heard for eight years and realize how extraordinary it was. That I think is... comes down to the nature of the conversations between Tenet and the president.

MARGARET WARNER: But, Mr. Lehman, Dick Clarke's big criticism is and his big piece of evidence that they didn't take it urgently enough was that Condoleezza Rice, the national security advisor, essentially dismissed his request that the principals-- the cabinet officers-- meet, that they, as he says shake their agencies for every bit of information, that if that had happened during the summer, during this spike threat in intelligence chatter that they might have learned what the FBI actually knew down in the bowels of the FBI that two of the 9/11 hijackers known al-Qaida operatives were in this country -- do you find that persuasive?

JOHN LEHMAN: No, I don't because, in fact, while it is true in the Clinton administration that Dick Clarke met with the president regularly and had regular access to him and George Tenet did not, in the Bush administration it was the other way around. George Tenet met every day to brief the president and give him his frank assessment of the entire-- and don't forget-- he's the DCI, speaks for the whole community and Dick Clarke did not. So I think there's a certain-- I hate to say this because in no way it takes away from the professionalism and the contributions Dick's made-- but I think there's a certain amount of dog in the manger there that he lost his access to George Tenet and so we have to calibrate that.

MARGARET WARNER: Ms. Gorelick, what's your view on that? You were in the Clinton administration. You were deputy attorney general. Do you think in the Bush administration having been at that level that it would have made a difference?

JAMIE GORELICK: Yes. Here I differ from john on this. While I don't think a meeting for a meeting's sake is very helpful at all, the fact of the matter is if you read any of the reports about what happened during the millennium, the government worked in ways that it normally does not. Information was shaken out and wrung out of the FBI, connections were made between departments using essentially the brute force of a meeting and bringing everyone together that generally doesn't happen. Now, you can say, well, we should have fixed all the systemic problems, but knowing that they weren't fixed it seems to me Clarke was saying to Rice, "You don't understand. We have an urgent threat here and you have to bring people together to hear what they have to say," not for the purpose just of meeting but for seeing whether there were fissures that could be broached, if you will, by such a meeting. I think there is an issue here-- and that I tried to probe in my questions over these last two days -- of whether the National Security Council is a policy-making enterprise only. Clearly it is a policy coordination entity. But in emergencies, it has to be very operational. And I think her style was to delegate that to Clarke. I think Clarke would have been happy to have it delegated to him if he could have run with it which he couldn't. That is the frustration you heard in his testimony.

MARGARET WARNER: Mr. Lehman, you today-- and we ran some of this in our excerpts-- questioned Clarke's very credibility. You told him he had to resolve some things. Are you saying you find his criticism today of the Bush administration's conduct suspect?

JOHN LEHMAN: I did not and would not suggest that he was bending the facts or changing the facts as he testified under oath both in the private sessions and public. What I was saying is that he let the blame go evenly and directly where it should go in the bureaucratic screw-ups and the bad calls that were made in both administrations in his private testimony with us. Yet in his public testimony, he turned it into a fairly... well not his public testimony but his book and the promotion thereof of a fairly rounding attack on only one administration. That was the administration that didn't have eight years of responsibility but seven-and-a-half months. And I think, frankly, because it turns out we both have the same editor at Simon & Schuster that there's a certain amount of bookselling going on here and fair and judicious does not sell a lot of books.

MARGARET WARNER: Ms. Gorelick, Dick Clarke not only at least in his public statements and so on-- and I haven't finished the book myself-- directs at one administration -- but in fact at a person in the administration, that is Condoleezza Rice and her handling of the whole process. My question is this: Do you think that she has addressed this with enough of a sense of urgency?

JAMIE GORELICK: It's very hard to apply 20/20 hindsight to this event. Every witness we had cautioned us about that. On the other hand, I saw government not working. I saw what happened when everyone was summoned to the table. Now, I left the Clinton administration in very early '97, so I didn't see any of the events that we've been talking about. But in other analogous circumstances I saw the power of being brought together in that way. And I think her conception of the job might have been wrong for the moment. I also think-- and this is a theme I think that runs throughout-- is that a lot of what the Bush administration did at the beginning was to be not Clinton. And fair enough, they were in office and it was their administration. But there were certain practices that the Clinton administration had, certain ways that they had of operating that actually were quite good and should have been given due consideration. So again we haven't formed final conclusions. We have impressions but that's one of the impressions I come away from this set of hearings with. And frankly I would like to have Condi Rice come back to us in private session so that we can address those issues.

MARGARET WARNER: And, Mr. Lehman, what Condi Rice says that is in fact and she said publicly though not publicly in front of your commission that they were working on a long range plan because they didn't think the Clinton plan was even aggressive enough. Given that, I mean, what is your take on or your impression-- and I know you haven't formed final conclusions yet-- about whether in retrospect that was the right approach or whether it was too methodical and too slow as Dick Clarke's suggests?

JOHN LEHMAN: Clearly in retrospect we now know that it was too slow, but again all of our witnesses pretty much agreed that by the time the administration came in by Jan. 20, the die was cast. The teams were largely here and even if we had killed bin Laden in the meantime the ability to stop it until the agencies that did screw up that we have pretty much established internally had done a better job, but I think one of the most important things that's come out of this hearing, the important points and insights was by Don Rumsfeld yesterday. He said that we've got to reform the way that we do transitions. We can no longer in this world have the hiatus, the vacuum of six months or so that seems to take place every time an administration changes. And there's got to be more of a handover and a faster confirmation and more of an institutionalized overlap between the serious experienced people of the outgoing administration and I've been through four transitions both incoming and outgoing and it happens every time. There is a hiatus when nothing can get done, where the new people are not even there... I mean, the old people are not even there when the new people come into the offices. This is a terrible kind of dysfunction that we've got to fix. And I can be sure that we're going to address that in the final report.

MARGARET WARNER: Let me ask you both a very brief final question. A number of commissioners have said in these hearings they want Condoleezza Rice to testify publicly. She of course has declined and the White House has declined. Ms. Gorelick, why is it so important for her to testify publicly briefly?

JAMIE GORELICK: Well I think the American public needs to understand what happened. What we have now is Condoleezza Rice speaking on the airwaves or in editorials but not answering questions publicly. Look, we will do our report. We have had private sessions with her. And we will have an adequate explication of what happened. I just think we're missing in terms of our public presentation of the facts the opportunityfor the American people to hear her answer these questions as everyone else has.

MARGARET WARNER: And Mr. Lehman, in a sentence do you agree?

JOHN LEHMAN: I agree that I think the administration is making a political mistake. I think they're correct in their strict legal interpretation. She does not have to testify. But we offered ways so that she would not technically be testifying. And she's such a strong witness. She has nothing to hide. She's very articulate. She'd be a very strong witness for the administration and to elucidate the entire problem. I'm sorry she's not part of our hearings.

MARGARET WARNER: All right. And I'm sorry to say we have to go. Thank you both.

FOCUS - ONE NATION UNDER GOD

JIM LEHRER: And finally tonight, Gwen Ifill has our Supreme Court story.

GWEN IFILL: The Pledge of Allegiance was on the court's docket today, specifically whether including the words "under God" is constitutional. It was a lively day at the court, and Marcia Coyle of the "National Law Journal" was there. NewsHour regular Jan Crawford Greenburg continues on maternity leave.

So give us the basis of this challenge that brought the pledge to the court today, Marcia.

MARCIA COYLE: California has a law that requires school districts to engage in some patriotic exercise in the schools every day. And one way to satisfy the law is the Pledge of Allegiance. The Elk Grove School District, which is outside of Sacramento, had a policy that teachers were to lead students in the pledge every day. Michael Newdow is a doctor and a lawyer, and his daughter attends one of the elementary schools in that school district. He objects to this. He feels that saying the pledge, particularly the phrase "under God" in the pledge, violates the establishment clause of the federal Constitution. He's the one who brought the challenge on his own behalf.

GWEN IFILL: So what is the argument against Newdow's position?

MARCIA COYLE: Well, the government in the court today was represented by Solicitor General Ted Olson and the school district also had its own lawyer argue, Terrence Cassidy. And both of them, basically, take the same approach. They say this is not a religious prayer. This is not religion. The pledge is a patriotic exercise, and the words "under God" are just an acknowledgment of what our founding fathers believe. Solicitor General Ted Olson said the founding fathers believed that God gave them the right to declare their independence. And so there is no establishment of religion that would violate the Constitution.

GWEN IFILL: Newdow, as you said, is a doctor and a lawyer, but not a practicing lawyer. Yet he was at the court basically representing himself. That's pretty unusual.

MARCIA COYLE: It is unusual. It's not unheard of, but he wanted to do this. He had carried the case in the lower courts and frankly he did a super job, I thought. He brought something to the court and to the argument that no hired lawyer could do. He could stand up before the Justices and say "I am an atheist. I don't believe in God. Every time the pledge is said, it feels like a slap in my face."

GWEN IFILL: And when he did that, what were the Justices... how were the Justices responding? I gather there was also a little outburst, an unusual outburst in the courtroom.

MARCIA COYLE: In the courtroom. Yes, there was. The Justices treated him, I thought, just like any other lawyer. They treated him with respect and they raised questions. For example, why is this any different from "in God we trust" on money?

GWEN IFILL: Who was raising that question?

MARCIA COYLE: This was Justice O'Connor. She also noted at the start of the court session every day, we say "God save this honorable court." And Mr. Newdow responded, "But nobody makes you say, in the audience, get up and say 'God save this honorable court.' Nobody makes you say 'in God we trust' when we use money." But what's happening to his daughter is in the classroom. She has to say the Pledge of Allegiance. Now Justice Kennedy said she really doesn't have to.

GWEN IFILL: Can't she just stop speaking when she says "under God" and keep going?

MARCIA COYLE: Yes, she can. But, as he pointed out, the classroom... students in a classroom are something of a captive audience. And there is coercion in the classroom because the child doesn't want to stand out. There's peer pressure. And the court has said in earlier cases involving prayer and classroom that you cannot have this type of coercion.

GWEN IFILL: Kind of like prayers led at graduation.

MARCIA COYLE: Exactly.

GWEN IFILL: The court even said that is not acceptable.

MARCIA COYLE: The court has struck down prayers at graduation. It struck down prayers at the start of a high school football game.

GWEN IFILL: So the heart of this argument, then, is whether these two words constitute a prayer or inherently a religious act.

MARCIA COYLE: That's exactly it. And Mr. Newdow would say this is prayer. And look back to 1954 when the words were inserted into the pledge. Congress made it very clear on the record that it was putting the words in as an acknowledgment of the country's dependence on the creator and also to distinguish the United States from godless communism. He said that if this isn't a prayer, I don't know what is.

GWEN IFILL: We just were kidding a little bit earlier that there was an outburst in the court. What was that about and what happens when that happens?

MARCIA COYLE: Well, the chief justice said to Mr. Newdow, he said, "well, when the words were inserted in the pledge, what was the voting congress?" And Mr. Newdow said, "I believe it was unanimous." And the chief looked at him and he said, "well, it doesn't appear it was that divisive." And Mr. Newdow responded, "it wasn't divisive because no atheist was ever elected to Congress. And everyone broke into applause... almost everyone broke into applause, but Mr. Newdow was very serious. He pointed out for the chief justice that there are still eight states that have clauses in their constitutions, even though they're really null and void, prohibiting the election of atheists.

GWEN IFILL: And there was a lot of excitement outside the court today as well.

MARCIA COYLE: Yes, there was. I think it was probably the largest group that had gathered on the court's steps this year. There were pro pledge people with microphones. One announced that if the court did not support the words "under God" in the pledge, it would become a major issue in the presidential election. There were on the anti-side, signs saying democracy not theocracy.

GWEN IFILL: Does this court have to decide first whether Michael Newdow, as a non-custodial parent or a parent with joint custody of his daughter, has the right, the standing to bring this case.

MARCIA COYLE: Yes, it does. It's sort of the elephant in the room in this case. The Justices spent most of the school district's lawyer's time talking about standing. The school district argues that the ultimate decision-maker for this child is the mother, who has custody and, in the custody order, is considered the ultimate decision-maker. Mr. Newdow questions that. Also, he feels he has a right on his own to bring this case. He says that every time his daughter stands up and says the pledge and reaches the words "under God," she is basically being told that her father is wrong. The other thing he points out is that the quintessential religious question, he said, is, is there a God? And the government with the pledge is saying yes.

GWEN IFILL: Justice Scalia, who last week wrote a 21-page recusal in another case involving his serving on the court, a case involving Vice President Cheney, has recused himself from this case.

MARCIA COYLE: Yes, he has.

GWEN IFILL: Why?

MARCIA COYLE: Last year, after the ruling by the U.S. Court of Appeals for the Ninth Circuit in the pledge case, the ruling that's now before the Supreme Court, he was at a rally and I think it was sponsored by a religious organization, and he criticized the ninth circuit ruling in his speech. It was very, very clear that he had expressed an opinion. And Mr. Newdow asked him to recuse himself from the case, which he did.

GWEN IFILL: Okay. Marcia Coyle, thanks once again.

MARCIA COYLE: Thank you.

RECAP

JIM LEHRER: Again, the other major developments of the day: Former counter-terror Chief Richard Clarke told the 9/11 Commission the Bush administration did not treat the terror threat urgently. But CIA Director Tenet said he never sensed any "lack of focus" after President Bush took office. And the European Union fined Microsoft more than $600 million for anti-trust violations. We'll see you online and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.