The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight: Our summary of the news; then, the latest on the fighting in Fallujah from Rajiv Chandrasekaran of the "Washington Post"; some perspective on the new U.N. proposal for governing post- coalition Iraq; and with Marcia Coyle of the National Law Journal, today's Supreme Court arguments on the rights of two Americans being held as enemy combatants.

NEWS SUMMARY

JIM LEHRER: There was more intense fighting in the Iraqi city of Fallujah today. The U.S. Military said marines called in helicopter gunships and bombing strikes after coming under attack. Thick smoke rose over buildings where insurgents had fired grenades and machine guns. In Baghdad, a U.S. Military spokesman said the fighting did not signal a major U.S. offensive. In Washington, President Bush said most of Fallujah is returning to normal, despite the violence.

PRESIDENT GEORGE W. BUSH: The closer we come to passing sovereignty, the more likely it is that foreign fighters, disgruntled Baathists or friends of the Shia cleric will try to stop progress. That's what's happening. Our military commanders will take whatever action is necessary to secure Fallujah on behalf of the Iraqi people.

JIM LEHRER: After nightfall, new explosions rumbled across Fallujah. U.S. Military officials said an AC-130 gunship attacked guerrilla targets after marines were fired on. We'll have more on the situation in Fallujah right after this News Summary. In Najaf today, U.S. soldiers began expanding operations outside their new base. They're trying to pressure radical Shiite leader Muqtada al-Sadr. A U.S. Military spokesman said there were signs that other factions in the city were clashing with al-Sadr's militia. An American soldier was killed in an ambush in northern Iraq today. That makes 116 U.S. combat deaths this month. And in the city of Kut, two Ukrainian soldiers were killed today, when gunmen ambushed their convoy. At the United Nations today, Secretary-General Annan criticized the new round of fighting. He said U.S. Military attacks on civilian areas would increase the resistance.

KOFI ANNAN: Violent military action by occupying power against the inhabitants of an occupied country will only make matters worse. It is definitely time, time now for those who prefer restraint and dialogue to make their voices heard.

JIM LEHRER: Annan urged peaceful solutions in Fallujah and Najaf. We'll have more on U.N. plans for the transition in Iraq later in the program. The U.S. Supreme Court heard arguments on whether American citizens can be held indefinitely as enemy combatants. One defendant is Yaser Hamdi, an American-born Saudi captured in Afghanistan in 2001. The other is Joseph Padilla. He was arrested in Chicago in 2002, and accused in a bomb plot. Today, their lawyers argued the president has no authority to hold Americans indefinitely. The administration argued the president has wide latitude to protect national security. We'll have full coverage of today's arguments later in the program. An Italian court acquitted nine Moroccans today, of plotting to attack the U.S. embassy in Rome. They were arrested in February of 2002. Italian authorities alleged they meant to poison the embassy's water supply. The defendants celebrated in court today after the verdict was read. Their lawyer insisted the case was all a misunderstanding. In southern Thailand today, more than 100 Islamic militants were killed when they attacked police stations in three provinces.

JIM LEHRER: We have a report from Ian Williams of Independent Television News.

IAN WILLIAMS: A coordinated attack at dawn on more than a dozen police posts. (Gunshots) But the security forces were waiting for them. They'd been tipped off. And the suspected Islamic militants were cut down by heavy gunfire. Scores were killed, and bodies soon littered the roads. The attackers, some only teenagers, were riding motorcycles and wielding machetes; some had guns. They were dressed in black and green, many wearing headbands and masks. The last battle zone was a mosque outside the provincial town of Pattani, to where more than 30 of the attackers fled. All of them were killed when the army stormed the building this afternoon. And as the fighting ended, a clearly shaken Thai prime minister vowed to crush the continuing unrest.

THAKSIN SHINAWATRA, Prime Minister, Thailand (Translated): We will put an end to these troubles. I won't let them hide behind separatism and religion. At the end of the day, they are all bandits. ( Gunshots )

IAN WILLIAMS: Today's violence follows weeks of unrest-- almost daily bombings, murders and arson attacks in the three Muslim-majority provinces bordering Malaysia, where the government has imposed martial law. (Bell rings) Heavily armed soldiers now patrol stations and trains across the Deep South. Early this month, gunmen stole 1,500 kilograms of the explosive ammonium nitrate from a local quarry. A great deal is now at stake. The British foreign office has warned tourists against travel in the area, which lies only 150 miles south of the thriving tourist resorts of Krabi and Phuket, a grim piece of geography of which the Thai authorities are only too aware.

JIM LEHRER: Thai leaders disagree over who's behind the violence, separatists or drug gangs. Comcast dropped its bid to takeover the Walt Disney Company today. Comcast is the nation's largest cable television company. Its president said he concluded Disney management was not interested in merging. Comcast originally offered $54 billion in stock in February. Disney, which owns the ABC Television network, among other things, said that wasn't enough. On Wall Street today, concern about the violence in Iraq, and rising interest rates, helped push stocks lower. The Dow Jones Industrial Average lost more than 135 points to close at 10,342. The NASDAQ fell nearly 43 points, or 2 percent, to close at 1989. That's it for the News Summary tonight. Now it's on to a Fallujah update, the Brahimi plan, and the Supreme Court's combatants arguments.

UPDATE - FALLUJAH FIGHT

JIM LEHRER: Today's fighting in Fallujah. Terence Smith talked by phone this evening to Rajiv Chandrasekaran of the "Washington Post." He has been embedded with the U.S. Marines in Fallujah for the past two weeks.

TERENCE SMITH: Rajiv Chandrasekaran, welcome to the broadcast. Can you tell us where you are and what you see, and what you have been able to learn today from your vantage point?

RAJIV CHANDRASEKARAN: Well, Terry, I'm at a marine forward-operating base in the city of Fallujah. We're on the eastern side of the city, but well withinthe city limits, and one that affords me a fairly good vantage point for the activity that has been occurring here in Fallujah. And today has been a fairly intense day of fighting around this city. There has been fighting on three separate fronts in Fallujah; The first in the northwest part of the city, in the Jolan neighborhood. This was where on Tuesday evening an AC-130 gunship striated two pickup trucks carrying in surgeons and weapons setting off some dramatic explosions, footage of which was beamed all around the world. Well, today, the attacks continued, I see from my vantage point here, to marine cobra attack helicopters flying low, striking at targets, as well as U.S. fighter jets bombing some targets there. You can see the plumes of dark, black smoke coming from there. But what was interesting about today was that there were two other fronts, essentially, opened up here. After receiving fire from insurgents from the southern part of the city, marines there called in air strikes, and fighter jets dropped as many as ten precision-guided bombs at targets on the southern flank. And on the eastern part of the city, fairly close to where we were, some additional bombs were dropped in response to hostile fire that was received by other marine units there. Even though we are technically in a cease-fire, that means that the marines aren't pushing into the city, they aren't engaging in offensive operations, they are responding when the insurgents fire at them. Sometimes that response comes in the form of sniper rounds or counter-mortar attacks. But today, as we saw with the awesome power of large U.S. bombs dropped from fighters that can also include fairly punishing air strikes.

TERENCE SMITH: Do you have any way to estimate or know either the U.S. casualties or the Iraqi casualties from a day of fighting like today?

RAJIV CHANDRASEKARAN: There have been no reports of U.S. casualties, although those reports oftentimes lag behind the actual fighting. So it might take us a day or so to find out any incidents of Americans who were injured or killed in today's fighting. It's much tougher to ascertain Iraqi casualties. Fallujah is still too dangerous for western reporters to operate inside of. So, we have no way of sort of checking in at these sites that have been bombed. And there are no sort of accurate counts that generally sort of trickle out of the city. At some point, when journalists can once again move in the city, we'll probably have a much better sense of the impact these past several weeks of fighting have had on the city.

TERENCE SMITH: Rajiv, are the marines still hoping to launch these joint patrols with Iraqi security forces that we've heard about?

RAJIV CHANDRASEKARAN: Yes, they are, Terry. But this evening here, marine commanders announced that they would not start the patrols as they had hoped for on Thursday. And there will be at least a 24-hour delay. No reason was given for this, but it might be safe to assume that all of the fighting in the city today has left the environment fairly tense and hot, if you will. And marine commanders may be hoping for the situation to cool a little bit before they enter the city with these joint patrols. There's also some concern that the Iraqi police officers and civil defense troopers, who will be accompanying marines on these patrols, still don't have the adequate level of training to confront well-armed insurgents. And so this delay will allow the marines an extra day of training.

TERENCE SMITH: And these joint patrols, are they to go in and try to locate insurgents, arethey to go from block to block? It certainly sounds like very perilous duty.

RAJIV CHANDRASEKARAN: Well, that's the eventual goal. The preliminary goal is more... just to have a show of force and to show the people of Fallujah that the police are back patrolling the streets, they're being backed up by the marines, that the marines are ready to reenter the city. Now, there is an expectation on the part of marine officers that these patrols will come under fire. They really have little doubt about that. They're hoping that they will be able to, you know, push through that fire and continue on with the patrols. And this is not your standard sort of patrol. The marines will be coming in with a full component of backup firepower. I can't talk about some of their plans for security reasons, but it's a fairly impressive array of military equipment that they're going to have at their disposal because they anticipate a confrontation. Now, these initial patrols, Terry, will be a decidedly one-sided affair. I mean, the marines are going to dictate the patrol route. They'll be in command. The hope is that eventually the Iraqi civil defense troopers and the policemen will be able to do some of this stuff on their own and confront these insurgents, fight with them, apprehend them. But that's -- based on the initial assessments of their skills -- seems like it might be a long way off.

TERENCE SMITH: Amidst all this fighting, are there still negotiations going on with parties within the city? Is there still... are the marines still willing to give that some time?

RAJIV CHANDRASEKARAN: Well, there still are discussions on a number of tracks. As I understand it, there are several different groups of Iraqis that are trying to negotiate. You have local leaders, you have national political leaders, you have religious leaders, tribal leaders, all of whom are trying to craft some sort of solution. But at the end of the day, it all comes down to: Do these people have influence over the insurgents? As yet, that has not been demonstrated. The local leaders who agreed to the terms of the cease-fire on April 19, with the marines, have thus far been unable to compel the insurgents to hand over any heavy weaponry, which was a condition of this cease-fire agreement. And so there is a deep skepticism on the part of some U.S. officials that a deal will work, that the people who are negotiating will be able to deliver on their promises.

TERENCE SMITH: Rajiv Chandrasekaran, thank you very much for talking with us.

RAJIV CHANDRASEKARAN: A pleasure to talk to you too.

FOCUS - MAN WITH A PLAN

JIM LEHRER: Now the transfer of power in Iraq and the man in charge of it, and to Gwen Ifill.

GWEN IFILL: This is the group currently charged with shaping Iraq's future: The Iraq governing council. But if all goes as planned, the council will dissolve as soon as next month, even before the U.S. officially turns political control over to Iraqis on June 30. The man in charge of figuring out what happens between now and then is Lakhdar Brahimi, the United Nations' envoy to Iraq. Brahimi laid out his plan for creating a new interim government to the U.N. Security Council yesterday.

LAKHDAR BRAHIMI: There will be potentially dangerous pitfalls and massive obstacles at every step of the way. But the job is doable as long as we set principled but realistic targets, moving towards them with deliberate steps, and if we are not alone as we take these steps. We will need, in particular, the Security Council to be united behind us and with us.

GWEN IFILL: Brahimi's blueprint, which would stay in force until elections next year, includes a president, two vice presidents, and a prime minister to be chosen before the end of May. Those selected, he said, should be individuals who agree not to run for office in the June 2005 elections, including most members of the current governing council. Brahimi is Algerian by birth, and a Sunni Muslim. A veteran diplomat, he served as Algeria's ambassador to Egypt and Sudan, and as Algeria's representative on the Arab League for seven years, until 1970. He became the league's special envoy to Lebanon in 1989, and mediated the end of that country's civil war. As a U.N. representative, he's led missions to Haiti and South Africa. Brahimi also helped broker conflict in Afghanistan during the civil war in the late 1990s, and again in 2001. Now, Brahimi has emerged as the Bush administration's point man on post-war Iraq.

REPORTER: Who will we be handing the Iraqi government over to on June 30?

PRESIDENT GEORGE W. BUSH: We'll find that out soon. That's what Mr. Brahimi is doing. He's figuring out the nature of the entity we'll be handing sovereignty over.

GWEN IFILL: Brahimi suggested last weekend on the ABC program "This Week," that full independence from U.S. Control would necessarily be limited.

LAKHDAR BRAHIMI: I think what you need to do is that you are going to put a government in power. They have got to be in charge of their country. There are realities. There is 150,000 foreign troops there. As I told you, they are not just going to, you know, disappear into thin air at midnight on the 30th of June. So some accommodations and some arrangements have to be made. Whether you call that limited sovereignty, I really don't know.

GWEN IFILL: And even as fighting rages on in Fallujah and Najaf, Brahimi has warned that such military action harms the prospects for a smooth transition of power.

LAKHDAR BRAHIMI: When you surround a city, you bomb a city, when people cannot go to hospital, what name do you have for that? And you see, if you have enemies there, this is exactly what they want you to do, to alienate more people so that more people support them rather than you. So I very much hope... I don't know, you know, all what is happening now. But in these situations there is no military solution. There is never any military solution to any problem. Even when you have total victory, you've got to end up talking to people.

GWEN IFILL: U.S. officials have said American forces can be expected to retain control over security issues, even after the hand-over.

GWEN IFILL: So, what are the chances this plan will work? Here to assess that question are James Dobbins, a former assistant secretary of state with extensive post conflict experience including in Afghanistan where he was special U.S. envoy. He's now director of the International Security and Defense Policy Center at Rand Corporation. Rashid Khalidi, director of the Middle East Institute at Columbia University, and author of the recent book "Resurrecting Empire," about western involvement in the Middle East.; and Fouad Ajami, director of Middle East studies at Johns Hopkins University's School of Advanced International Studies. He was in Iraq in February and we hope to be joined shortly by Feisal Istrabadi, senior legal adviser to governing council member Adnan Pachachi, and one of the principal authors of the interim Iraqi constitution. He was in Iraq last month. Welcome everyone.

Professor Ajami, I would like to start with you. I wonder if you can assess for us the Brahimi plan as we have seen it laid out for us?

FOUAD AJAMI: Well, in many ways, I mean, it is odd we have turned to Brahimi because the language of the stock market may be appropriate. It's time for dumping, and oddly we have now turned to a Nigerian, a member of the very same discredited and bankrupt political class that has led the Arab world to ruin. And I hope that Brahimi will pull a rabbit and will do something in Iraq which is better than the sloth of ground his own native Nigeria is. It is ironic we have turned to him and we can talk about this later because it is about the change of American strategy after the screwy month of April but nothing Brahimi says or does will change the ballot ground. Our forces are there. We have 10,000 soldiers and the reality of Iraq will not be changed by Brahimi.

GWEN IFILL: The same question to you. There is nothing that Brahimi can do, as your colleague says, to change what is happening on the ground?

RASHID KHALIDI: Well, I think that the reality of occupation and the reality of a lot of resistance in many parts of Iraq to that occupation is going to continue. I think the important question however is what options are there? This situation, I think, has very few positive outcomes. The United States entered into Iraq on the basis of illusions, on the basis of people in Washington having absolutely no idea of what they were getting our country and our servicemen into and whatever Brahimi does, we are talking about options that range from very bad to much worse. I, too, hope that he will be able to bring about some kind of improvement in the situation, but I have to say, I do believe that what is happening in Fallujah, what may happen in Najaf and other places in Iraq will probably be very, very important in the determining those outcomes.

GWEN IFILL: Ambassador Dobbins, just from what we've seen so far we've heard so far from Mr. Brahimi, what is your sense?

JAMES DOBBINS: Mr. Brahimi is not involved in this because he is an Arab or a Nigerian. He is involved because he is an international civil servant of unparalleled experience and skills. He worked very closely with the Clinton administration in Haiti. He worked very closely with the Bush administration in Afghanistan. He has a proven record of working effectively with American administrations in these post-conflict transitional situations. He also successfully negotiated the conclusion for Lebanon's civil war. He really has an unparalleled set of experience. If anybody can pull this rabbit out of the hat, it will be Brahimi. That said, it is going to be exceptionally difficult. The objective is to install a sovereign government in Iraq which has as much legitimacy and support within Iraq as possible, and as much legitimacy and support outside of Iraq as possible. And associating the United Nations and Brahimi with that effort will, perhaps not decisively, but certainly on the margins, increase the legitimacy and support both inside and outside Iraq.

GWEN IFILL: One of the things, ambassador Dobbins that Mr. Brahimi said yesterday is that the government he imposes can be in place before June 30, next month. Is that doable?

JAMES DOBBINS: I don't think it should be installed by then. I think what he intended was that it should be identified by then so that the individuals can begin to prepare for their tasks so there could be a transition at the end of June with individuals who had had a month to prepare in the same way as an American president has several months to prepare after he is elected before he assumes office.

GWEN IFILL: Mr. Ajami how did you evaluate what you heard him say about the timing?

FOUAD AJAMI: Well, I don't think the timing... the issue of the timing, I think we can deal with it fairly rapidly. Bremer will be in charge until June 30. After June 30, the real high commissioner in the place will be John Negroponte. We are not going to turn anything over to the likes of Lakhdar Brahimi. I think what is interesting about this situation in which we find ourselves, we appointed a governing council and the governing council had enormous amount... some of the characters are extremely credible and authoritative in their own world. We didn't give them enough power. We kept carping about them and we kept insisting that they were appointed not elected. We appointed them but then we didn't empower them. What will be the fate of the next government? Will it be any different? Will the outcome be any different? Will it be any more legitimate?

GWEN IFILL: Excuse me. So you suggest instead...

FOUAD AJAMI: I don't... I mean I think we know what is going to happen. I mean, this has in fact we have empowered Brahimi. We live with this. June 30 is upon us. We live with this. But I don't think we should just give this constitutional process... it looks very precise and very neat that Brahimi has come up with. I don't think we should give it that much credit. The force is on the ground and the fight on the ground and the forces on the ground will determine what happens in Iraq. The people in charge of Iraq will be Bremer and it will be Negroponte and our military commanders who run these provinces of Iraq and have done a decent job of it.

GWEN IFILL: Rashid Khalidi, so Fouad Ajami says it doesn't matter. We are just going through motions because Americans will still be in charge and sovereignty will be in name only. What is your sense of that?

RASHID KHALIDI: Sovereignty certainly will be in name only. But I think that the very problem that we're going to be facing for the next year at least, has to do with the realities that we've just heard about. If American military commanders control the provinces that they run, if Ambassador Negroponte or High Commissioner or Viceroy Negroponte, whatever we want to call him, is the power in Iraq, then I don't think things will get better. I think things will continue to be as bad as they are or get worse. Part of the problem this is administration had no intention of creating an Iraqi government that would be independent. We could hear this from the kinds of things they talk about. We want Iraq to recognize Israel. We want Iraq to send oil here and there. We want to privatize this, privatize that. These are not things the Iraqis would necessarily want. They weren't asked. I think that the sooner that Iraq is in the hands of Iraqis, the better things will be there. I think that having American military officers whose job is to fight wars, in charge of provinces, is a recipe for disaster. We should go back and look at what happened to the British when they had a situation like that. I think that having an American viceroy or ambassador, whatever one wants to call him, sitting in an embassy with thousands of employees running Iraq is a recipe for disaster. This will not work. Sooner or later, whether via the method that Ambassador Brahimi has suggested or otherwise, Iraqis have to take over their own into the country.

GWEN IFILL: Let me bring into the conversation Feisal Istrabadi who has joined us from Chicago who was caught in a little bit of traffic. This is something that real this, Brahimi plan on the table, or whether this is something just in fact, I guess to put words in the mouths of our guess a cover in order to allow the United States to continue in power. In other words, the Iraqis will have the authority but not really the power.

FEISAL ISTRABADI: Well, look, I mean there are, first of all I do apologize for being late. Thank you for having me on again. The issue is this. If it is a matter of the provision of security within the country which unfortunately even United States has not been able to maintain-- has not been able to maintain since entering Iraq a year ago, it was never going to be the case that Iraqis there this time frame would be able to provide that security. But the fact of the matter is, as I heard WHAT Professor Khalidi was saying, it is essential that the running of ministries and the running of the affairs of Iraq be turned over to Iraqis. And I think that Lakhdar Brahimi is trying to get us through first period of time between June 30 and the end of January of next year when elections are to be held at which time a fully legitimate albeit still transitional government will come into place, the primary goal of which will be to write a permanent constitution and to hold a general election. This first phase, which is what Ambassador Brahimi was dealing with, is to get us to the elections. There has to be an election law written and it seems rather obvious, among other things, that it is necessary for Iraqis to do that work rather than as Professor Khalidi was saying, relying on an American imperator to impose an Iraqi election law.

GWEN IFILL: Amb. Dobbins, let's talk about the security situation on the ground. We see what is going on in Fallujah today and what is going on in Najaf. Is there any way of actually putting any plan in place as long as those uncertainties remain?

JAMES DOBBINS: Well, I think it is certainly going to be hard to have elections by the end of the year unless security situation improves. I think it will be possible to agree among principal Iraqi leaders, the U.N., the U.S., on the identities of the relatively small number of people who will form this interim government, who will govern Iraq for the period between now and elections unless the violence increases to the point where it simply is impossible to get a consensus among the responsible and moderate leaders with whom we are consulting because they've been alienated to a point where they simply are not prepared to associate themselves with any process which the United States is associated with.

GWEN IFILL: Fouad Ajami, one of the things we have been trying to learn in the last few days is exactly who is Lakhdar Brahimi and is he right person for this job. He is a Sunni Muslim. Among his first statements was one in which he reflected the anti-Israel sentiment among many of the Arab nations. Is he in the right position right now for this job?

FOUAD AJAMI: He is not really the right man. There is a left bank intellectual. I used to stay on a shack on a street in which he had a fancy apartment in Paris. This is a Nigerian nationalist, a member of the Arab world. He describes the situation in Fallujah as collective punishment. This is not collective punishment unfolding in Fallujah. What we're trying to do in Fallujah is to route out terrorists and Brahimi goes to Iraq and picks a fight with Ahmad Chalabi, of all the political class in Iraq why? Because Chalabi is a Shia or close or said to be close to the Bush administration, so it doesn't bode well.

GWEN IFILL: I just want to clarify when you say pick a fight, he has suggested it would be okay if Chalabi was not part of the new interim caretaker government.

FOUAD AJAMI: And a general antagonism. I also want to add a footnote. Ambassador Brahimi was under secretary-general of the Arab league when the Kurds were being gassed by the Saddam regime. He had nothing to say about this. When he goes to Iraq, he goes with a solid record. This is not the messenger and the angel that we take him out to be.

GWEN IFILL: Rashid Khalidi, what do you make of the complaints raised by Fouad Ajami about Lakhdar Brahimi?

RASHID KHALIDI: If silence while the Kurds were being gassed would disqualify people from being in Iraq, a large part of the Bush cabinet would have to recuse themselves, starting with the secretary of defense. But more to the point, I think, we are talking about someone who has come in and said a few very intelligent things. Whatever his background may be, his experience, I think, as has been pointed out, has been to help in the resolution of some virtually irresolvable problems. He has made a few intelligent suggestions. Carpetbaggers like Ahmad Chalabi who came into Iraq on the backs of American tanks and no support within Iraq probably should not be involved in government. Nor should people who would like to run for elections, including some of the incredible people from the parties that do have a following in Iraq and have been involved in the governing council. It would be like having say Democratic Party of Illinois or Republican Party of Texas drawing up redistricting boundaries. You are going to get an election reflecting who controls the election process. What he is suggesting in effect is that technocrats be in charge during period in which hopefully elections will follow. I think there are a number of suggestions like that in his plan, kinds of things that people should have been thinking about long, long ago -- in addition to which, hopefully this will take the heavy hand of Washington off of every single decision in Iraq in the future and fundamentally change the situation where every single position in Iraq for the past year has been made by Mr. Bremer or Douglas Fife of the pentagon or Secretary Rumsfeld or the president himself. This is not the way to run Iraq.

GWEN IFILL: Mr. Istrabadi, have you had some hand in advising members of the Iraqi governing council. What do you think about what Mr. Khalidi just had to say?

FEISAL ISTRABADI: I find myself in agreement with a large measure with Professor Khalidi. I would not describe however those of us who have spent our years and the Diaspora, who are attempting to rebuild Iraq as carpetbaggers, however. But having said that, his larger point I think is correct. Lakhdar Brahimi is a man who is greatly respected in Iraq. In criticizing Israel, he gave voice to the views of very many Iraqis whose sympathies certainly are with the Palestinians and with the problems that they have confront far more so than they are with the government of Ariel Sharon with which I think Professor Ajami may have more sympathy. And the fact that he is a Sunni, I'm afraid, is more of an issue for Potomac River experts and the American media than it is for Iraqis. Fortunately in Iraq, one of the things that has not been a problem in Iraq historically and continues not to be amongst the population of Iraq is the kind of sectarianism and ethnic strife which has been the problem in other places, including in the Middle East such as in the Lebanon. That he is Sunni or Shia or whatever his personal views may be is of no moment. The point is he is attempting to secure an interim government which will have international legitimacy as well as domestic legitimacy. The idea of installing technocrats to run a government makes sense. You want people who know how to get things done. The fact of the matter is the governing council has not been able to project a positive image of itself and getting technocrats to me seems to be way to go I've we have a moment for brief response from you, ambassador. Ambassador Dobbins, excuse me.

JAMES DOBBINS: I tend to agree. I think the situation is extremely difficult. But Brahimi is trying to consult all of the responsible and moderate groups in the country. And what he is saying is almost certainly reflecting what he is hearing.

GWEN IFILL: Thank you both -- all of you, for joining us.

JIM LEHRER: Still to come on the NewsHour tonight, enemy combatants before the U.S. Supreme Court.

FOCUS - WAR & LIBERTIES

JIM LEHRER: And Margaret Warner has our Supreme Court coverage.

MARGARET WARNER: Today, the high court justices heard what are widely regarded as the two most important cases yet, testing presidential power in the post- 9/11 world. The Supreme Court released audio tapes immediately after the arguments. Marcia Coyle of the "National Law Journal" was in the court today, and is with us now to guide us through today's proceedings. Welcome back, Marcia.

MARCIA COYLE: Thank you.

MARGARET WARNER: Why are these cases regarded as so significant?

MARCIA COYLE: These are really extraordinary cases because the Supreme Court has not dealt with these issues on many occasions. And when it has, it has been in the context of wars very different than the war on terrorism. From these two cases and the Guantanamo Bay cases, we are going to learn something about the extent of the president's power in time of war, the rights of American citizens when the powers directed at them, and more broadly, how this Supreme Court balances civil liberties and national security concerns.

MARGARET WARNER: Now there two defendants, and they had two different lawyers. But they are both U.S. Citizens. Give us brief thumb nail sketches of each of them, starting with Yassir Hamdi.

MARCIA COYLE: Yassir Hamdi was born in Louisiana when his father who is Saudi was working on an oil rig; he grew up in the Middle East. He kept dual citizenship. The government alleges shortly before 9/11, he went to Afghanistan, trained with the Taliban and was part of the Taliban unit armed and combative during the hostilities with the United States and our allies, was captured by allied forces, turned over to the United States. The United States discovered he was an American citizen when he was held in Guantanamo Bay, transferred him to a military brig in Norfolk, Virginia.

MARGARET WARNER: And then Jose Padilla.

MARCIA COYLE: Padilla. Born in Brooklyn, grew up in Chicago. A former gang member. He converted to Muslim. He is alleged by the government to have gone to Pakistan and other countries to visit with al-Qaida operatives and conspired in a plot to detonate a dirty bomb in the United States. He was arrested in Chicago, taken to New York to be a witness before a 9/11 grand jury the president designated him as an enemy combatant. He was transferred to military authorities and is in a brig in South Carolina.

MARGARET WARNER: Both have been held without charges, essentially. Though they are different. And they have, as you just told us, different fact situations, it fair to say they're essentially seeking the same kind of relief from the Supreme Court and on the same basic kind of constitutional and legal grounds?

MARCIA COYLE: Yes, itis. There are essentially two issues before the court in both these cases. Hamdi is saying that as an American citizen, he has a right to full process in American courts. And he and Padilla are both challenging the authority of the president to hold them indefinitely as enemy combatants

MARGARET WARNER: Padilla's lawyer, Jennifer Martinez, made quite a passionate argument on just this point. Let's listen to that.

JENNIFER MARTINEZ, Attorney for Jose Padilla: The government cannot take citizens in this country off the street and lock them up in jail forever without a trial. That is never the way this country has operated, and it is fundamentally inconsistent with our traditions. And so I would submit that today is not the day for this court to decide whether that's permissible. The government asks in this case for basically limitless power. And however grave the circumstances of the war terror may be, this nation has faced other grave threats. We've faced war on our soil before and never before in the nation's history has this court granted the president blank check to do what ever he wants to American citizens. So the fact that we're at war does not mean that our constitutional rules do not apply even in war time, especially in wartime.

MARGARET WARNER: All right. And what was the government's main retort to that or rejoinder to that?

MARCIA COYLE: The government does have authority. The president has authority as commander in chief of the military and also because of a congressional resolution that authorizes the use of all necessary and appropriate force against countries, organizations and persons involved in this war.

MARGARET WARNER: All right. Now Paul Clement, the deputy solicitor general who represented the government in both of these cases, he had an exchange with Justice Ginsburg in which she challenged him as to why are Hamdi and Padilla being treated differently than John Walker Lindh. He is an American citizen. He came back and got processed through the civilian courts. Let's listen to that.

PAUL CLEMENT, Deputy Solicitor General: Petitioners contend that the government categorically lacks the authority to hold Hamdi as an enemy combatant. But it has been well-established and long established that the government has the authority to hold both unlawful enemy combatants and lawful prisoners of war captured on the battlefield in order to prevent them from returning to the battle. Over 10,000 United States troops remain on the field of battle in Afghanistan. No principle of the law or logic requires the United States to release an individual from detention so that he can rejoin the battle against the United States.

MARGARET WARNER: How does the government justify some going through the criminal process others just being held indefinitely?

PAUL CLEMENT: Well, Justice Ginsburg, I think that reflects a sound exercise of prosecutorial and executive discretion. There are some individuals who may be captured in a situation where they do not have any particular intelligence value, they have been handled in a way where there are no difficult evidentiary questions that would be raised in a criminal prosecution, and those individuals can be dealt with in the Article III system. But there are plenty of individuals who are... either have a paramount intelligence value that putting them into the Article III system immediately and providing them with counsel, whose first advice would certainly be to not talk to the government, is a counterproductive way to proceed in.

MARGARET WARNER: Now Hamdi's lawyer, Frank Dunham hada quite a scathing response to Mr. Clement's presentation. Let's hear that.

FRANK DUNHAM, Attorney for Yaser Hamdi: Mr. Clement is a worthy advocate, and he can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is: "Trust us." And who's saying, "trust us"? The executive branch. And why do we have the great writ? We have the great writ because we didn't trust the executive branch when we founded this government. That's why the government saying "trust us" is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that "no man shall be deprived of liberty except upon due process of law." We have a small problem here. One citizen-- we're not talking about thousands-- one citizen caught up in a problem in Afghanistan. Is it better to give him rights, or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus, and there are circumstances where you can't get due process? I think not. I would urge the court not to go down that road. I would urge the court to find that citizens can only be detained by law. And here there is no law. If there is any law at all, it is the executive's own secret definition of whatever "enemy combatant" is. And don't fool yourselves into thinking that that means somebody coming off a battlefield, because they've used it in Chicago, they've used it in New York, and they've used it in Indiana.

MARGARET WARNER: Now some of the justices seemed, though, troubled by the practicality of what Hamdi and Padilla's lawyers were asking for?

MARCIA COYLE: This goes to the habeas corpus issue. Mr. Dunham is saying that as an American citizen, even though he may be an enemy combatant, he has a right when he goes into federal court with a petition of habeas corpus to be heard. What happened in his case was a federal appellate court basically said once the government came forward with a declaration, outlining why they've designated Hamdi as an enemy combatant, that's it. Hamdi does not have an opportunity to challenge that or gather evidence or hear witnesses. This is what the court now was probing. How practical is it for an enemy combatant, and here one that was captured on the battlefield to get witnesses and evidence to a court in the United States during ongoing hostilities?

MARGARET WARNER: Let's listen to this interesting exchange between Justice Scalia and Hamdi's lawyer, Mr. Dunham.

ANTONIN SCALIA: What would you expect the military to do? As I understand it, he wasn't even captured by our own forces. He was captured by allied forces and turned over to our forces, right?

FRANK DUNHAM: Well, that's certainly part of the problem, your honor. We have a strong...

ATONIN SCALIA: Well, it is. You want them to run down the members of the Afghan allies who captured this man and get them to testify in a proceeding? It's just putting unreasonable demands upon a war situation. I just...

FRANK DUNHAM: Your honor, I don't... my view is that it can never be an unreasonable demand to comply with the habeas corpus and the Fifth Amendment.

MARGARET WARNER: But now did it seem to you that other justices still remained troubled about this notion of basically unchecked executive authority to declare any U.S. citizen an enemy combatant?

MARCIA COYLE: Yes, some justices were probing Mr. Clement for how far does the government's position go here -- can you take an enemy combatant and can the president order him to be shot? And the government tried to explain to the courtthat basically we are not talking about unchecked power here. Our power is derived from a congressional resolution authorizing the use of necessary and appropriate force.

MARGARET WARNER: And this is the resolution that was passed what, a week... a week after the one you described earlier, a week after 9/11.

MARCIA COYLE: That's correct.

MARGARET WARNER: Other justices seemed very concerned about the open ended nature of that congressional resolution. Here's a sampling - we've got Justices O'Connor, Breyer and Souter and the other voice we'll hear is that of the government lawyer Paul Clement.

SANDRA DAY O'CONNOR: If we ever had a situation like this, where presumably this status, warlike status, could last for 25 years, 50 years, whatever it is --

STEPHEN BREYER: Let's say it's the hundred years' war. Is there no opportunity for a court, in your view, to say that this violates for an American citizen the elementary due process that the Constitution guarantees?

PAUL CLEMENT: I mean, you can imagine a situation where the evidence and the government's own affidavit shows that somebody's only detained with regard to a war in Afghanistan. And then you could imagine that that has been signed, sealed and delivered-- it's over, the president says so, congress says so-- and there's an effort to continue to detain that individual.

DAVID SOUTER: Well, I can imagine it. And I can also imagine that concern about Afghanistan will go on as long as there is concern about al-Qaida, and there is no end point that we can see at this point to that. So that it seems to me your answer boils down to saying, "Don't worry about the timing question, we'll tell you when it's over."

MARGARET WARNER: And was that essentially what the government lawyer was saying?

MARCIA COYLE: Yes. I believe it was. And as I think Mr. Dunham said in his comments, basically government is saying, you know, trust us. We will say when this has been resolved.

MARGARET WARNER: Now there was another interesting issue that Justice David Souter brought up and Padilla's lawyer, Ms. Martinez brought up, that maybe it is up to Congress now to do something else. What were they driving at there?

MARCIA COYLE: This was... there were a number of comments about Congress and the argument-- in the argument. The concern here is that okay, we are holding people indefinitely. Congress issued this resolution a week after 9/11. It's been two and a half years that these two men have been detained. Maybe it's time that Congress has a responsibility to revisit the resolution or whole concept of indefinite detention of American enemy combatants.

MARGARET WARNER: And basically come up... say what the procedure should be.

MARCIA COYLE: Exactly.

MARGARET WARNER: But Justice O'Connor expressed some skepticism in what they had to deal with. Let's listen to that now. She is discussing with Padilla's lawyer, Ms. Martinez.

SANDRA DAY O'CONNOR: We're faced with the situation of the here and now, and what do we do? Do we just turn lose a ticking time bomb?

JENNIFER MARTINEZ: No, Your Honor, I believe that, first of all, were this court to rule that congressional action was required, I have no doubt that congress would step into the breach very quickly to provide whatever authorization the executive branch deemed necessary, so I think there is no doubt that Congress would fill that measure.

MARGARET WARNER: Let me ask you about another element. We didn't play any of it because it was so arcane but there was a long discussion during the Padilla case about a jurisdictional issue. Could that be important? They gave it a lot of time.

MARCIA COYLE: Yes. It could be. This has to do with whether Padilla's petition for a habeas corpus was basically filed in right place. It was filed in federal court in New York, which is where he was brought after he was arrested in Chicago. The government says that, under the traditional rules of habeas corpus, you file your petition against the person who holds you in custody, and this petition was filed against Secretary Rumsfeld and not the warden of the brig, where he is now in South Carolina. If the justices want to avoid the merits of the case, they could find there was no jurisdiction and the petition was filed there erroneously.

MARGARET WARNER: But there is no such avenue of escape from confronting the merits in the Hamdi case?

MARCIA COYLE: No, there isn't. And that case, I think, will be very interested for the issue of how much process of review does a federal court have to give and as well as is the president authorized to detain citizens in this manner?

MARGARET WARNER: Now when we talked last week about the Guantanamo case, you said you've learned... and everybody makes prediction based on the arguments. Based on what you heard today and also what you know about the court, could you sense which way they're leaning or what they're searching for here?

MARCIA COYLE: I think the court is very trouble by the fact that the detention of an American citizen could be indefinite, could go for years without that citizen having the opportunity to present his or her case. My sense when I left the argument was just a gut sense that government may not win here -- may not win easily, may not get everything it asks. I will say though that there are a good number of justices who have spoken about civil liberties in wartime and do believe that they may have to bow to the exigencies of national security.

MARGARET WARNER: And in fact Justice Rehnquist wrote an entire book on it.

MARCIA COYLE: Yes. He did.

MARGARET WARNER: In the discussion with the Hamdi lawyer, they seemed to discuss at some length was their a middle ground? They kept saying to Hamdi's lawyer, would you be satisfied if at least the military would give you some sort of procedure? What do you make of that?

MARCIA COYLE: Well, I think the court was searching for a middle ground here. Mr. Dunham responded that yes, he thought that that would satisfy at least the question of review, not the question of presidential authority. But he did point out that the government had already said that it wasn't required to do this and it didn't want to do this.

MARGARET WARNER: And decision expected this summer.

JIM LEHRER: That's correct.

MARGARET WARNER: Marcia, thank you very much.

MARCIA COYLE: Thank you.

JIM LEHRER: Again, you may listen to today's Supreme Court arguments in full, on our web site at pbs.Org.

RECAP

JIM LEHRER: Again, the other major developments of the day: There was more intense fighting in the Iraqi city of Fallujah. President Bush said U.S. commanders have the authority to get Fallujah under control, but U.N. Secretary-General Annan said military assaults on the city are only making things worse. And police in Southern Thailand killed more than 100 Islamic militants in fighting across three provinces. We'll see you online, and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.