The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, our summary of the news, full coverage of today's announcement about futures for the Guantanamo detainees; a look at the escalating actions and rhetoric over same-sex marriage and civil unions; the analysis of Mark Shields and David Brooks; and an update of the crackdown on steroids use by professional athletes.

NEWS SUMMARY

JIM LEHRER: A new government panel will hear appeals by the detainees at Guantanamo Bay, Cuba. Defense Secretary Rumsfeld made that announcement today. More than 600 alleged al-Qaida and Taliban fighters are being held there. Rumsfeld said the panel will do annual reviews of their cases. If they no longer pose a threat, they could be released. Rumsfeld said others would be held "as long as necessary." We'll have more on this story right after the News Summary. In Iraq today, a U.N. spokesman said he doubted there was enough time for elections before June 30. That's when Iraq regains sovereignty. The official spoke after a U.N. team met with Iraq's governing council. Some on the council called for an expanded version of that body to take power. The head of the U.N. team said Iraqis must work together or risk breaking apart.

LAKHDAR BRAHIMI: Civil wars are not started by people through a decision that tomorrow we are going to start a civil war. Civil wars happen because people are reckless, because people are selfish, because groups think more of themselves than they do of the benefits of their country.

JIM LEHRER: The Iraqi Shiite leader Grand Ayatollah al-Sistani has demanded elections before the transfer of power. The U.S. wants regional caucuses to choose an interim legislature. But members of the governing council said today there's growing opposition to that plan. U.S. Army General John Abizaid played down speculation today he was the target of an ambush in Iraq. He's the commander of U.S. forces in the Middle East. On Thursday, insurgents attacked his convoy in Fallujah, but no Americans were hurt. Today, Abizaid said he was never in danger, and he said he doubts the attackers knew he was in the convoy. In Baghdad today, another roadside bombing killed one U.S. soldier and wounded another. The official U.S. casualty figures now stand at 537 killed by combat and other causes. More than 3,000 have been wounded or hurt in accidents. The South Korean parliament approved the deployment of 3,000 troops to Iraq today. That would make it the third largest force in the coalition, behind the United States and Britain. More than 400 South Korean medics and engineers are already serving in Iraq. The rest are expected to arrive by the end of April. President Bush has ordered all of National Guard files released. A White House spokesman said the records would be released within hours. The president faces renewed questions about whether he showed up for duty in the Air National Guard in Alabama in 1972. Wesley Clark endorsed John Kerry today in the Democratic presidential race. Clark quit his own campaign this week after poor showings in Virginia and Tennessee. The retired general appeared with Kerry today in Madison, Wisconsin, and praised Kerry's service in Vietnam and beyond.

GEN. WESLEY CLARK (Ret.): Both John and I served in Vietnam and we know what it is to be tested on the battlefield fighting for your country. John Kerry never quit fighting for his country. From a young district attorney sending criminals away for life, to a courageous senator, standing up for what's right. John Kerry has been the kind of leader America needs. He'll stand up to the republican attack dogs and send them home, licking their wounds.

JIM LEHRER: The latest polls showed Kerry with a wide lead in Wisconsin, which holds its primary on Tuesday. But John Edwards and Howard Dean campaigned in the state again today. Dean said: "There are an enormous amount of people who do want to continue this campaign Whether it's enough to win the nomination, we'll see. In San Francisco today, city officials issued marriage licenses to same-sex couples for a second day. Most of the couples took their vows on the spot. Mayor Gavin Newsom approved the action in a challenge to California's ban on same-sex marriage. In Massachusetts, the state legislature wrapped up debate last night on banning gay marriage. The lawmakers failed to reach a consensus. We'll have more on this story later in the program. Rebels in northern Haiti braced today for an expected police offensive to end a week-long uprising. The country's fourth-largest city has been in rebel hands for a week. Police have already driven them out of another major city. The insurrection has killed at least 49 people and disrupted U.N. food aid. In Washington today, Secretary of State Powell met with leaders from the Caribbean and Canada to discuss what to do.

COLIN POWELL: We all have a commitment to the democratic process in Haiti, and we will accept no outcome that is not consistent with the constitution. We will accept no outcome that, in any way, illegally attempts to remove the elected president of Haiti.

JIM LEHRER: Powell also urged President Aristide to renounce violence against his political opponents. Supporters of Aristide blocked a major protest yesterday in the capital, Port-au-Prince. Opposition groups plan to try again on Sunday. On wall street today, the Dow Jones Industrial Average lost 66 points to close below 10628. The NASDAQ fell 20 points to close at 2053. For the week, the Dow gained a fraction of percent. The NASDAQ lost 0.5 percent. And that's it for the News Summary tonight. Now it's on to: The prisoners at Guantanamo, the growing debate over same-sex marriage, Shields and Brooks, and the steroids crackdown.

UPDATE - THE DETAINEES

JIM LEHRER: The Guantanamo detainees. Margaret Warner has our coverage.

MARGARET WARNER: Secretary Rumsfeld's speech came after months of criticism by human rights groups over America's indefinite detention of hundreds of foreign fighters. Rumsfeld vigorously defended it today and made clear it would continue.

DONALD RUMSFELD: Very simply, the reason for their detention is that they're dangerous. Were they not detained, they would return to the fight and continue to kill innocent men, women and children. It is a security necessity, and I might add, it is also just plain common sense. Detaining enemy combatants also serves another purpose. It provides us with intelligence that can help us prevent future acts of terrorism.

MARGARET WARNER: Roughly two years after their capture in Afghanistan, some 650 foreign men are still being held at a U.S. Military base at Guantanamo Bay, Cuba, without formal charges or access to lawyers; 87 have been released to their home governments. In July, the president said six would be eligible for trial by military tribunal, but none have been held. In October, the International Red Cross, the only group allowed to visit the detainees, publicly criticized the legal limbo in which they're held. Today Rumsfeld did announce a new process of review.

DONALD RUMSFELD: For those detainees who pose a continued threat and who do need to be detained, the U.S. Government is instituting a process for an annual review that would ensure that the detainee has an opportunity to provide information to a panel and that the judgments about continued detention will be made on the basis of the most current information possible.

MARGARET WARNER: But, he maintained, these prisoners are not entitled to the normal legal protections of the U.S. Constitution.

DONALD RUMSFELD: We need to keep in mind that the people in U.S. custody are not there because they stole a car... (laughter) ...or robbed a bank. That's not why they're there. They're not common criminals. They're enemy combatants and terrorists who are being detained for acts of war against our country. And that is why different rules have to apply.

MARGARET WARNER: The Supreme Court will hear arguments in April on whether the Guantanamo detainees may challenge their treatment in U.S. courts.

MARGARET WARNER: Now two perspectives on what Secretary Rumsfeld had to say on the detainees' status. Paul Butler is the Pentagon's point man on the Guantanamo detainee issue. David Cole, a Georgetown University law professor, is an attorney with the Center for Constitutional Rights, which co- filed the suit on the detainees' behalf.

Welcome, gentlemen.

David Cole, as we just heard, the secretary made clear that as far as he's concerned, under what he called the law of armed conflict, the Pentagon has every right to hold these detainees without interference from the civilian courts until the war on terror is over. I know you disagree. Why?

DAVID COLE: Well, this is an extraordinary and unprecedented assertion of authority. The government claims that the president can pick up any person anywhere in the world, U.S. citizen or foreign national and lock them up indefinitely without trial, without charges because we are in a war on terror. And when they are asked to define that war, they say it's a war against terrorist organizations of global region. It won't be overpass until there are no terrorists of global reach. Today everybody has global reach and there has always been terrorism as long as people have organized themselves into political societies. So they're asserting the authority to lock up any person anywhere around the world and to keep that person indefinitely forever without any process whatsoever. And that is simply unprecedented. They're using the laws of war, but they've used it to apply to something which is not a temporary extraordinary emergency, but is rather a permanent condition as they've defined it. So they've given themselves a kind of power to lock people up without any process whatsoever. It's one thing if these people are, in fact, enemies and Donald Rumsfeld repeatedly calls them enemy combatants but calling them so doesn't make them so. The problem is that there has been no process, no process by which an innocent person could have his claim heard and be released despite evidence that people who were not, in fact enemies were in fact detained; 87 have been released.

MARGARET WARNER: Mr. Butler.

PAUL BUTLER: It is not unprecedented. Some of the facts, I think, are just not correct. Holding enemy combatants in an act of war is not an unprecedented thing to do, and this is an act of war. We have an enemy that has declared war on us repeatedly. Osama bin Laden issued a public fatwa in 1998 and said it was the duty of his followers to kill Americans - civilian and military -- wherever they can be found. The group has attacked ourembassies, our military installations, our troops, our civilian populations, our financial centers and the centers of our government. So we are holding enemy combatants in an act of war. And to release them would create a severe security threat. You know, if I might just address the issue of procedures, there are elaborate procedures already in place that do address some of Mr. Cole's concerns. Over 10,000 people were taken off the battlefield in Afghanistan. Less than 800 have come to Guantanamo pursuant to very rigorous screening procedures. Once they arrive in Guantanamo, they are interrogated, assessed. Those assessments are made by professionals including behavioral psychologists, intelligence officers, law enforcement officers. Those assessments are sent up to interagency groups which include State Department, FBI, CIA, there's enormous amounts of time scrutinizing these detainees. That's how we've gotten the 87 releases and the transfers thus far.

MARGARET WARNER: Let me just ask you one follow-up tough on the basic assertion. You talk about al-Qaida declaring war on the U.S. Are all -- have you been able to determine that all of the Guantanamo detainees are, in fact, al-Qaida members, members of that war?

PAUL BUTLER: It is a very difficult process. We are at war with al-Qaida, its affiliated terrorist organizations and the Taliban. We have people, quite frankly, in the chaos of war, who we don't have a tremendous amount of information about. So we are trying to learn about them. We applied very strict criteria to bring them there, and there's a document called the Manchester Manual that was picked up in a search in Manchester and has surfaced in Afghanistan and elsewhere. It's the al-Qaida manual, basically. There is a very lengthy chapter on counter-interrogation techniques. These are sophisticated terrorists who know how to avoid interrogation. We are learning about them every day; we're learning more about from other intelligence sources and we work extremely hard to find out who these people are. We do not want to hold one person in Guantanamo one day longer than they need to be held.

MARGARET WARNER: Why is that not satisfactory?

DAVID COLE: The message is trust us. We have got behavioral psychologists and we won't make a mistake. When they brought people there initially, they said these are the worst of the worst, these are people who are chewing the cables on their transport plane to bring it down. Now we find out there are kids in the thirteen to fifteen year old age range, there are people there as old as 80 and 90; 87 people have been sent back. If these were the worst of the worst, why were they sent back? They were sent back because the military made a mistake. And yes the military can make mistakes but that's why you have to have a process. And the Geneva Conventions, which permit this kind of authority, say you have got to have a process, you've got to have a tribunal to determine what their status is.

MARGARET WARNER: Okay. So let's get to the new process that Secretary Rumsfeld announced today. This annual review. How is it going to work? Who are going to be the judges? Can these detainees have lawyers, can they have their home governments come in and present evidence on their behalf? How will it work?

PAUL BUTLER: There's a lot left to be decided and who will be the panel members and who they will report to, you will be hearing about in the very near future. It will be a panel independent of the current procedures that I described to you that will report to the secretary on threat. The detainee will be able to be able to be heard in person. And the foreign government, that detainee's foreign government will be able to submit information on the detainee....

MARGARET WARNER: But will it be up to the detainee to prove he is no longer a threat?

PAUL BUTLER: The standard of evidence that will be used is yet to be worked out. The panel will be able to consider all of the intelligence information available, any information presented on behalf of the detainee or the foreign government and make a determination about whether this person remains a security threat to U.S. forces. If I could just address the Geneva Article 35 provision Professor Cole referenced, there are no specific procedures set out in Article 5 of Geneva. We don't think Geneva in its entirety applies because this group targets civilian populations deliberately by their very actions, by their very words, they violate the Geneva Convention. However what we have in these procedures goes far beyond any Article 5.

MARGARET WARNER: All right. But let's go back to this new review process. Does that at least go halfway or all the way to satisfying what you think is necessary?

DAVID COLE: Well, I think it is an improvement over some processes and improvement over no process. But how do you think we would feel if we were in a war and the other side took American citizens, asserted that they could lock them up indefinitely forever, gave them no process whatsoever for two years, and then said well, now we've decided we are going to give you some sort of a process that's not specified what it is going to be. I don't think we'd say that's okay they've satisfied the Geneva Conventions. I think what we would say you should not be locking up an American citizen unless he is in fact an enemy fighting against you. And that's the whole question here. Are these people in fact enemies?

MARGARET WARNER: All right. But are you saying that the U.S. Military and the U.S. Government should not be the party that decides that; that they must go to civilian courts?

DAVID COLE: No, no. I think under the Geneva Conventions, it can be a competent military tribunal but the tribunal is deciding is this person in fact fighting for the enemy or not. In the Iraq War, in the first Iraq War, we held 1200 of these hearings on the battlefield, 800 people were determined not to be fighting for the enemy and released. Why here have we refused adamantly from day one to provide the hearing? Now we are not giving them that hearing. We are saying every year we'll check up on you and decide whether we want to keep you detained. That's not the --

MARGARET WARNER: Why not give all of these men who there now a full military hearing, the kind that Professor Cole is talking about?

PAUL BUTLER: The kind Professor Cole is talking about is not the sort of hearing that I think that the people envision. First of all, again, what incentives are we creating in the system -- The Geneva Convention was meant to impose order on the chaos of war and protect soldiers from being killed by people who blend in with civilian populations and to protect civilians from being killed by enemy combatants. The Geneva Convention has a framework. People who deliberately violate the Geneva Convention should not be entitled to all of its protections. That seems to me common sense. Second of all, to say that people will be held indefinitely without process is just flat out wrong. People will be held until the end of hostilities or when we determine that they're no longer a threat. We are also trying to work with foreign governments tohelp us have them take responsibility for a number, a fair number of these detainees to enter into transfer agreements that help address the risk that they pose.

MARGARET WARNER: Do you agree with professor... we only have a second left. Do you agree with Professor Cole that this is the... the war is pretty indefinite duration if it is against worldwide terror?

PAUL BUTLER: This is a new war, no question about it. But also two years into War World II, we weren't so certain when that war was going to end. What the new procedures or additional procedures are designed to do is to help us with that. The war could end in stages. If the Taliban surrenders clearly and no longer presents a threat, then perhaps Taliban could be let out. But there are rigorous procedures already in place -- to say that these are now procedures that didn't exist before is not factually correct.

MARGARET WARNER: Literally five seconds, what would be the one most important thing they have to have in this procedure that you think would be equitable?

DAVID COLE: A fair hearing in which the person has a right to present evidence and confront the evidence against him and establish in fact he is not an enemy of the United States.

MARGARET WARNER: We have to leave it there. Thank you both very much.

JIM LEHRER: Still to come on the NewsHour tonight, the same-sex marriage debate, Shields and Brooks, and steroids in pro sports.

FOCUS - GAY MARRIAGE

JIM LEHRER: Ray Suarez has our same-sex marriage story.

SPOKESPERSON: All God's children should be equal under the eyes of the law!

RAY SUAREZ: After struggling through two days of heated debate over the question of same sex marriage, Massachusetts legislators adjourned their constitutional convention in gridlock last night. State legislators had convened in a joint session for the last two days considering a constitutional amendment banning gay marriages. Political demand for the amendment grew last week after the state's highest court ruled that same-sex marriages must be permitted, beginning on May 17. The court said that Massachusetts' constitution guarantees homosexual couples the same rights to marriage enjoyed by heterosexuals and "forbids the creation of second- class citizens." That ruling led to a heated political debate this week both outside and inside the statehouse. Opponents of same sex marriage argued in favor of a constitutional amendment limiting marriage to that between a man and a woman. Some, such as Representative Paul Loscocco, argued this week the state court had overstepped its bounds.

REP. PAUL LOSCOCCO: The issue really before us today is no less than our representative form of government versus judicial tyranny. Today the subject matter of the court infringement relates to the people's right to define marriage. However, we should all consider that if left unchecked what rights the court will continue to usurp tomorrow.

RAY SUAREZ: Variations on the original amendment were also offered as compromises, some offering stronger protections for civil unions, which provide some legal benefits and protections, but often are not transferable outside a given state. Sharp disagreements were heard on the floor.

MARIE PARENTE: Mother Nature left her blueprint behind, and she left it in the DNA of a man and a woman. You know, I didn't create that combo; Mother Nature did. The statute of marriage was created to give statutory protection of a family unit, to protect a man and a woman and the child they would create.

RAY SUAREZ: But state Senator Jarrett Barrios, who is gay and recently adopted two boys with his partner, said gays and lesbians needed the legal benefits of marriage. He described the problems he encountered when trying to get medical attention for his seven- year-old son with a high fever.

JARRETT BARRIOS: I reached a nurse at the hospital, and I started going into his symptoms. I told him the name and he said to me, are you the parent? I said my name is Jared. I'm the parent. The parent we had listed is Doug Hataway. That's my partner I said. But we don't have you listed. Are you married? You aren't. What ensued seemed like an eternity. When my child had 104.5 fever and I admit I was a new parent, I thought as many new parents thought, he could die on my watch while I was fighting with a nurse over whether I was his parent or not.

RAY SUAREZ: Senator Dianne Wilkerson argued it was a civil rights issue for her gay constituents.

SEN. DIANNE WILKERSON: I can assure you I know them; they feel; they care; they love; and they are deserving, and I say again that this is a civil rights. Issue.

RAY SUAREZ: In the end, neither side prevailed, and the meeting was adjourned. Legislators plan to next month. Overall, 38 states have passed laws defining marriage as between a man and a woman. Last Friday, Ohio enacted one of the most restrictive measures, refusing benefits such as health insurance to unwed partners of state workers, gay or not. Only four states offer legal recognition of some kind for gay couples. In a surprise move yesterday, the City of San Francisco began granting marriage licenses to gay couples in defiance of California state law. Today more than 300 couples were lining up at city hall and filling out forms. Opponents sought a restraining order. At the federal level, the Defense of Marriage Act, signed by President Clinton in 1996, defines marriage as between a man and a woman and says states need not recognize the marriage laws of other states. President Bush has sent some signals, initially during his state of the union speech, that he might back a federal constitutional amendment banning gay marriages.

PRESIDENT GEORGE W. BUSH: If judges insist on forcing their arbitrary will on the people, the only alternative left to the people would be the constitutional process.

RAY SUAREZ: The White House said this week it is still reviewing its options.

RAY SUAREZ: For more I'm joined by: Cheryl Jacques, president of the Human Rights Campaign, a gay, lesbian, bisexual and transgender advocacy group; and Matt Daniels, president of Alliance for marriage, an organization that supports a federal amendment banning gay marriage.

Matt Daniels, hundreds of marriages in California over the last two days. Ohio, unequivocally slamming the door. Massachusetts deadlocked for the moment. The events are coming fast and furious. What effect has this had on your efforts to block gay marriage nationwide?

MATT DANIELS: Well, the big picture here is that the battle, as we've said for years, will ultimately be decided nationally and in constitutional terms, regardless of the flurry of activity you see in San Francisco, for example. The real action politically will be at the level of some sort of national standard for marriage which, inevitably, if you understand the dynamic-- dynamics in the courts will be constitutional by the American people amending the constitution to protect what they believe is the commonsense understanding of marriage: the unions of the two halves of the human race joining together.

RAY SUAREZ: And Cheryl Jacques, what impact has this had on your efforts to make marriage available to homosexual people?

CHERYL JACQUES: It's helping to educate the country. I think Massachusetts and San Francisco will play a very important role in helping Americans understand that when gay couples get married and when they have basic protections like the right to each other's health insurance in the workplace, the right to collect Social Security survivor benefits upon their death, I know I pay into that system but I will never receive those benefits for my family because of discriminatory laws. What Massachusetts and San Francisco are going to help the country understand is that when these couples get married, they're more safe, they're more secure, their families are stronger and that's wonderful. And for the vast majority of Americans, absolutely nothing will change. They will be like any other day. Their life will be normal. They'll raise their children and drive to work and so forth. They're just going to get it. They're going to get when the family next door is made safer next door, they're not harmed in any way and the family next door is stronger and that's a good thing.

RAY SUAREZ: Most recently, the Massachusetts high court reaffirmed its earlier ruling saying that no other version of marriage was going to cut the mustard constitutionally as far as they could see as far as marriage itself. Can you see any way between now and May 17, that any roadblocks could be put in the way of gay people starting to get married in the state of Massachusetts in May?

CHERYL JACQUES: I don't see that. And good for the court, and let's remember what the supreme judicial court of Massachusetts did. These are not activist judges. These are judges who looked at a very simple document, our Constitution that says all people shall be treated equally under the law. They then said to the state, tell me why these families can't take care of one another, why they can't have health insurance why they can't have basic benefits that keep families strong? Frankly, the state couldn't give them one reasonable answer. So they said treat them equally under the law. That's what happened in Massachusetts. And there really is nothing that can be done to stop this and good. And like I said, Massachusetts will then help educate the rest of the country to the fact that any time we help families be stronger, any time we protect children, and over a million children are being raised in gay households including my two the boys that I'm raising, that's a good thing. That's a good thing for families and a good thing for children.

RAY SUAREZ: Matt Daniels, do you agree with Cheryl Jacques that May 17 is coming and it is unlikely that there's anything that's going to stop gay marriage?

MATT DANIELS: I do. The majority of Americans, if they have a say in this democratically, they don't need to be educated. They know what marriage is: It's the union of a man and woman. They believe children do best when they have mothers and fathers, male and female role models. There is an ocean of empirical data which supports that proposition. They believe that gays and lesbians have a right to live as they choose but they don't have a right to redefine marriage through the courts. What we are going to see is more and more people moving in favor of some sort of resolution which is democratic as opposed to judicial, and which allows us to send a positive message to our children and grandchildren about the unique nature and social importance of the union of male and female, something which cannot be copied or imitated by those who cannot play the roles of mothers or fathers. For example, a gay couple cannot offer children the benefit of half the human race, women, moms flip it on its heads. A lesbian couple can offer young men, boys, the benefits of having fathers to show them the things that only men can teach other men. There is something special about the union of male and female. The American people believe that. They don't need to be educated. And, you know what, if the American people speak through the amendment process, we'll see marriage protected and all questions of benefits under our amendment would be left to the democratic process. It is not about benefits. It never will be. It is will about the future of men and women in America for every man, woman and child.

RAY SUAREZ: It does take a long time to pass an amendment to the United States Constitution. It's more likely to see an amendment to the Massachusetts constitution in the near term

MATT DANIELS: I would disagree. The Massachusetts state amendment effort in the best case scenario cannot fully play out until 2006. Given that we have 38 states that have recently passed laws to protect marriage within their jurisdictions from this sort of judicial activism or judicial policy-making, the right and left do judicial activism, and I'm not saying it is the only example, but it is one; 38 states have passed laws to protect their marriage laws from what is happening in Massachusetts and what will happen in the federal courts. That's all you need to ratify a federal marriage amendment. If you we get this amendment out of Congress, I believe it will pass through the states rapidly, certainly before 2006 which is what it would take to amend the Massachusetts state constitution.

RAY SUAREZ: Before that happens, it sounds like you are conceding there will be married gay people. What happens to them if the amendment goes then?

MATT DANIELS: What will happen between them is that the courts of Massachusetts will strike down the duly enacted marriage laws representing the judgment of the Massachusetts legislature. If you believe that marriage is uniquely and essentially the union two of genders that that has unique benefits for children, that's the end of marriage. You understand if that's how you define marriage, men and women coming together -- the two halves of the human race uniting to parent children, it is marriage being struck down by courts that don't understand what most people in this country think and believe.

RAY SUAREZ: Cheryl Jacques, until there is some other actions that are taken and other levels of government, what happens in Massachusetts if people start getting married after May 17? What happens to them once...

CHERYL JACQUES: You know, frankly, for a small group of families, they're stronger. And for the rest of the country, it's a normal day like any other day. This doesn't change marriage. This allows more people to enjoy marriage, enjoy the protections that come with marriage, the thousands of federal benefits and so forth. I have to respectfully disagree with Matt. He says, you know, these families are not deserving of protections. There are over a million children out there raised by gay parents, including my two little boys. And tell me why, Matt, it's fair for me to pay week after week out of my paycheck into the Social Security system yet if I die, my children, my partner will not get he financial benefits that your family would get? Why is that fair? Why does that help your family? It only hurts my family.

RAY SUAREZ: Matt Daniels.

MATT DANIELS: This is not about benefits and it never will be.

CHERYL JACQUES: It is about benefits.

MATT DANIELS: I'm answering your question Cheryl: I'd like to answer a question. The right has been on record for almost two years. The right has been on record for almost two years opposing our federal marriage amendment because we would leave all questions of benefits to the states. That's a matter of public record. In fact, we have taken a lot of incoming fire from groups on the right who don't allow us, don't want to see a centrist solution to the issue that offers some hope of reconciling the competing claims of both extremes. We want to protect marriage as a man and woman and leave all benefits questions to the people of the state in keeping with our democratic values and culture, not the courts.

RAY SUAREZ: Cheryl Jacques, in the last few moments, a court in California that has been called upon to put a restraining order on the city of San Francisco for issuing marriage license to same sex couples has refused to do so. Your reaction?

CHERYL JACQUES: Well, and let me just say -- meanwhile, my family doesn't have the benefits that Matt talks about and it is important to remember that. All this prospective talk -- meanwhile there are families and children that don't have the legal benefits that are afforded his family and that's discrimination any way you label it. With regard to California, I'm thrilled that that court is not interfering with the mayor's call to allow couples to get married. You know, that's a good thing. Any time we share benefits, any time we have other families be stronger, the entire nation is the beneficiary of that. That's always good. It's why we want the family structure. It's why we want two loving committed parents raising children. It's why I'm a former lawmaker; it's why we write laws that give families so many tax protections, inheritance protections, health care protections because the family unit is a wonderful thing and we should encourage it. There are thousands, millions of gay families out there who are waking up in the morning, worried about the same thing as any other family, good schools, a safe community, raising their children, and they're doing all of that with none of the legal protections that help keep other families strong. That is not good for this country. And we are now on a path to fix it. That's a good thing.

RAY SUAREZ: Does this open another front -- California and that move in and particular court?

MATT DANIELS: No, it doesn't. I think that's really more of a PR stunt because in California as a lawyer, I can tell you that marriage is a state institution. The real battle here will be resolved nationally. It will be done fortunately democratically. And this is not about discrimination because two of the largest black denominations in America, men and women who marched, who were beaten and jailed for their participation in the civil rights movement, support the federal marriage amendment because they believe kids flourish and do best when the two genders come together to parent: Men and women offering role models that only mothers and fathers can offer. That's a widely held proposition that transcends virtually every racial, cultural and religious boundary line that's reflected in our diverse coalition and I believe the American people will see the day when marriage as a man and woman with its unique benefits is protected and everything else under our amendment left to the democratic process in the states.

RAY SUAREZ: Very quick response Cheryl Jacques.

CHERYL JACQUES: Well, leading civil rights leaders like Dr. King's wife, Coretta Scott King, Julian Bond from the NAACP, Congressman John Lewis, who walked side by side with Dr. King, stand shoulder to shoulder with us in this fight because they see it for exactly what it is. It is this generation's fight for civil rights. Once again, we are at a place in our society where we are, some are looking at a small minority of people, gay and lesbian families and saying you are not deserving as the same as the rest of society. True civil rights leaders understand thieve been there before and we heard the exact same arguments, the exact same arguments, to defend segregation. We heard the same exact argument to ban interracial marriage. History was wrong then, it's wrong now and America will fulfill her promise. She always does, of full fairness and equality for all her citizens.

RAY SUAREZ: Cheryl Jacques, Matt Daniels, thank you both.

FOCUS - SHIELDS & BROOKS

JIM LEHRER: Now, the analysis of Shields and Brooks, syndicated columnist Mark Shields and "New York Times" columnist David Brooks.

First the same-sex marriage issue. Is that going to become a presidential election issue, Mark?

MARK SHIELDS: Yes, it is, Jim. There are basically two ways you can run for reelection, whether you're running for county commissioner or you're running for president for a second term. One is say, look, these are our successes, our achievements, progress was made. Let's finish the job. The second is look we don't have a lot of things to celebrate, but let me tell you, the guys on the other side are really dog robbers and grave robbers and worse. You want to shift the focus and the attention to a referendum. This an issue that has presented itself to the Republicans, and which they're going to seize. And I don't think there is any question about it. Democrats are very much on the defensive. The public is against gay marriage. I would make this prediction unequivocally. Just as at t he 1984 convention in California that nominated Walter Mondale, Jean Kirkpatrick used the term-- San Francisco Democrats. It will be the first or second speaker at the Republican National Convention who will talk about Massachusetts Democrats, the Massachusetts supreme judicial court; in all likelihood, it's a Massachusetts nominee at a Boston convention, and while the public is against a constitutional amendment or very ambivalent about a constitutional amendment, the issue of gay marriage is unpopular.

JIM LEHRER: Do you agree? Do you agree it will be an issue the way Mark said it will?

DAVID BROOKS: Not quite. It is utterly legitimate as an issue. There is all this talk described as a wedge issue or somehow a nasty issue -- it is an issue. We should have debate about it. Sometimes I get the impression a wedge issue is any issue that might benefit a Republican and Democrats never have wedge issues.

JIM LEHRER: In other words, you think it is a legitimate thing for the American people to be debating?

DAVID BROOKS: It's an important change that we need to talk about it. I'm not on the Republican side of this particular fight but it's something that is perfectly legitimate to have an election about. On the other hand, I do not think it will be a major issue in part for some of the reasons Mark described. I think politically it is an incredibly complicated issue. As Mark said, two to one people oppose gay marriage. On the other hand, as Mark also said, a majority oppose a constitutional amendment to ban gay marriage. And then there's another public dynamic coming through here, which is that people resent the courts pushing them around. So there's all these cross cutting currents. I generally fall back on the Gigot rule, named after the guy who used to sit in this chair, which is that whatever party raises any issue relating to gays loses. People just don't want to talk about it. And so I think any party is going to be careful about raising this issue.

JIM LEHRER: In other words, the Massachusetts Democrat line that Mark laid out, you don't think....

DAVID BROOKS: That may come up, but it will come up for a whole range of issues if the Republicans decide that John Kerry's greatest vulnerability is that he is a Massachusetts liberal, which I don't think is what they'll decide.

JIM LEHRER: Speaking of John Kerry, do either of you have any information since we last talked which was two nights ago, to... that would make you believe that John Kerry is not going to win Wisconsin on Tuesday?

MARK SHIELDS: I have not. Unless something has happened in Osh Kosh tonight. We have not.

DAVID BROOKS: Within five rows of Jane Fonda -- that has become an issue - in 1971.

JIM LEHRER: Let's talk about that. We talked about that the other night. But the issue about Vietnam, what John Kerry's situation anti-war efforts, the photograph and other things, and of course President Bush's record with the Air National Guard. Are we going to fight Vietnam all over again?

MARK SHIELDS: Well, I think, Jim, what you are seeing is the White House just released one of the great....

JIM LEHRER: Hundreds and hundreds....

MARK SHIELDS: Shake 'n' bake maneuver that has been used by every administration. You get something you want to get out that's unpleasant, do it late Friday on a holiday weekend and dump hundreds of pages, just do a big paper dump on people in hopes that it won't be reported immediately. It is a defensive issue. If the debate is over who is the better warrior, who is the stronger defender of this country when it was under combat siege, John Kerry wins that argument. So Bush has to get at commander in chief, I return to the original point, if you can't talk about what you've done, you talk about what the other guy did 30 years ago, and the Republican national chairman, the Bush campaign chairman, are attacking John Kerry and putting him somehow in the same crowd of several thousand people three years before Jane Fonda went to Hanoi, this seems to be the issue. But I think it's a problem for the president because it plays right into the whole credibility erosion which we've seen all week.

JIM LEHRER: You said the other night when we talked about this, David, this was of no relevancy. Do you still feel that way?

DAVID BROOKS: More than ever. I spent the week talking about Zakawi, this terrorist in Iraq, about weapons of mass destruction, about the Pakistani non-proliferation or the proliferation threat coming from there with serious people and then you turn on the TV and you see the White House press corps baying like jackals about this stupid story from 1972. That was 30 years ago. You know, the youngest voters were born in 1986. What are they supposed to make about something that happened in 1972? I just think Sept. 11 happened, we've got important issues to talk about. The idea that we are talking about something 30 years ago, we are as far removed as Vietnam as Vietnam was removed from prohibition. It's as if the 1968 presidential debate was how Hubert Humphrey and Richard Nixon reacted to some Calvin Coolidge policy. It's ridiculous to go back this far.

MARK SHIELDS: Let me dissent. Jim, one of the charges that's been leveled against the president is the vulnerability the president has politically, is that he is too close to those well off, that he's shown too much concern for those who are well off. This is a pattern of treatment that the president received. He jumped over 500 people to get into a unit - it was known as a champagne unit. His attendance record was spotty. He got out eight months early. There were a lot of people in Vietnam who got out eight months early. A Republican said to me that Kerry got out early from Vietnam after his second tour and his third purple heart. I think the questions that go to, is the president going to level in the year 2004 about what went on? And now he has dumped all the records out, apparently, after essentially sitting on them for the past ten years.

JIM LEHRER: How do you read that to the document dump a while ago over at the White House?

DAVID BROOKS: This festered for days and days and I tried to follow it as much as I could possibly stand to. There was one guy who served with him does remember him being there on weekends. There was another guy who doesn't remember, so you had all this cross cutting, and it was clearly never going away. So I guess they finally dug up the faded old microfiches and dumped it out. The guy has been president for three years. If you want to make a charge hat he is too close to the high and mighty, too privileged, does not represent the common people, that's fine. But you have got Ken Lay; you've got Halliburton, there are many ways to get at that issue, which actually has to do with my lifetime basically.

JIM LEHRER: What about the counter attacks now on Kerry and his anti-war record and the photograph of his sitting in a crowd behind Jane Fonda? There's the photograph. You can see there's Jane Fonda in the kind of red sweater there and right behind her in the fuzzy thing there is John Kerry.

DAVID BROOKS: He needs glasses. He is squinting. I could care less about that. He came back -- he gave testimony in which some people say he slandered his fellow vets by calling them war criminals. He gave a Harvard Crimson interview saying he wanted to get rid of the CIA -- that was 1971, or '72, or '73. It is so distant. He's had a record. Both these guys have had long records which we can talk about. Why doesn't anyone talk about the 90s, the '80s -- because boomers can't get over Vietnam, a lot of us can get over it.

MARK SHIELDS: John Kerry came back from Vietnam where he had killed the enemy, personally --where he had seen his mates killed, where he had saved lives and he concluded it was a terrible war, a terrible mistake. And he led the fight against that war, and he gave one of the most eloquent addresses I've ever heard before the Senate Foreign Relations Committee when he said tell me, what do you say to the last man to die for a mistake? And, you know, it was an unanswerable question. I think that's absolutely, if anything, it is a high patriotic deal.

JIM LEHRER: But the point here is if somebody disagreed... in other words, thinks it was the wrong thing for him to do, is it fair game now?

MARK SHIELDS: Of course it is. If they want to say Bob Kerrey who won the Medal of Honor and came back and turned on the war and said it was the wrong war and supported those who supported the war from fraternity row, want to turn on them, that's great.

DAVID BROOKS: I'd like to make one important amendment. John Kerry's heroism in Vietnam transcends the particular issues of Vietnam and he deserves credit and it goes to his character, which I think is eternal, just as John McCain's heroism. He deserves credit and that is a legitimate issue that he has a right to talk about. The political attitudes that he had as a 20-year-old or sitting with Jane Fonda or talking about the CIA, that stuff - that's stuff that I think is over the bridge, that stuff is far away and it's irrelevant. He has had many different opinions since then which are far more relevant in how he will behave as president than anything he said at a hearing or to the Harvard Crimson.

JIM LEHRER: Talking about the president, there is a new "Washington Post"-ABC poll today which shows that he has got a credibility problem. Over half the people think that he may have lied or exaggerated on weapons of mass destruction in Iraq. Is that a serious problem?

DAVID BROOKS: First of all, the question was did he exaggerate? And I think he exaggerated. I think....

JIM LEHRER: If you had been part of the poll....

DAVID BROOKS: They never let us journalists answer the question. That poll is not particularly damaging. You can think he exaggerate and still support the policy. The credibility question is I think his greatest vulnerability -- not because of weapons of mass destruction, more as we spoke a few weeks ago about the budget, a whole series of things where people feel he has not come straightforward with the people. If I could just make one point about the polls, he has had as bad a two months as you can possibly have. John Kerry mass had about as good a one month as you could possibly have. Despite that dynamic, they're still basically even in the polls. So that suggests the president still has some residual advantage. It could get worse for him; he could lose. But he is sitting reasonably well considering all that's happened.

JIM LEHRER: What do you think about this poll?

MARK SHIELDS: I think it's cumulative, Jim. I think David is right. I think it's the budget. I think it's the joint chiefs of staff have gone up to Capitol Hill this week and saying you can't play this way on funding for Iraq. They know they're going to have to spend $50 billion in Iraq-- in Afghanistan. They refuse to put it in the budget because they don't want the deficit to be bigger. As John McCain said, you are deceiving the American people, you're deceiving the American people about the deficit and about the debt. That means they're going to run out of money in September when the fiscal year runs because they don't want to come up for a request until after the election for supplemental appropriations, so I think it is really a whole host of things; it is the weapons of mass destruction, it's the cost of Medicare to get conservative votes for it. It's $400 billion. Two months later it's $140 billion more.

JIM LEHRER: Let me ask, David, do you think the president deserves this credibility problem? Is has he earned this credibility problem?

DAVID BROOKS: It's a mystery to me. I have reasonable amount of dealings with people in the administration and they strike me as earnest honest people, but yet this happens with some frequency. So to be honest, it doesn't jar with what I know of the people in the administration. I think bush is basically a straight shooter but there is this record and it's undeniable. I don't know how to square those two facts right now.

JIM LEHRER: Obviously, we're going to have many opportunities to talk about this, I'm sure, in the next weeks and months. Thank you both very much.

FOCUS- DRUGS & SPORTS

JIM LEHRER: Finally tonight, Spencer Michels updates the sports steroid story.

SPENCER MICHELS: Four men accused of distributing anabolic steroids to top athletes pleaded not guilty in federal court in San Francisco today. After parading a series of athletes before a grand jury in San Francisco last fall, the federal government announced the indictments yesterday on charges the men conspired to distribute the steroids. The defendants were allegedly tied to Balco, the bay area laboratory cooperative, which federal agents searched in September. The firm makes and supplies nutritional supplements and was suspected of developing a new hard-to-detect steroid called THG. Among those indicted were Balco's founder and the trainer for San Francisco Giants home run hitter Barry Bonds. In the U.S. synthetic steroids are illegal unless prescribed by a doctor for medical reasons. Mostly available via the Internet or on the black market, anabolic steroids are chemicals related to the male hormone testosterone. When injected or ingested, they build muscle and increase strength. While there are no accurate studies of how many people are on steroids, body builders and athletes are reported to use them frequently. But the athletes were not the main target of this investigation. And that's important, according to "San Jose Mercury News" sports writer Elliott Almond, who has covered steroid scandals for 20 years.

ELLIOTT ALMOND: It was one of the first times that the drug testers in Olympic sport or in sport, instead of going after just the athlete, they went after the supplier. They feel that if they can bring some of these mavericks down, that the athletes then won't have a place to go.

SPENCER MICHELS: The investigation began when a used syringe containing some residue arrived anonymously in June at the U.C.L.A. Olympic analytical laboratory in Los Angeles. This lab, the only U.S. Lab accredited by the International Olympic Committee, is where scientists figured out what the substance was, the new steroid T.H.G., and eventually how to detect it. Don Catlin, an M.D. and molecular pharmacologist, has been the lab's director since it opened 22 years ago. Using a computerized machine that recognizes most steroids using electronic "fingerprints," his lab searches through samples of urine taken from athletes.

DR. DONALD CATLIN: We know all the fingerprints and we've programmed the computer to go search for each and every one.

SPENCER MICHELS: But the lab's equipment doesn't recognize designer steroids like T.H.G., Manufactured specifically to produce the most muscle growth.

DR. DONALD CATLIN: You take a steroid that exists, and you twiddle around with the molecule a little bit so that it's not the same, and that can make it undetectable or we don't know where it is. We don't know how to find it in the urine.

SPENCER MICHELS: Newly created steroids pose a challenge.

DR. DONALD CATLIN: THG is a whole new chapter. It's telling us that after 20 years of fighting the battle, there are still people out there who are bound and determined to figure out ways to beat the system.

SPENCER MICHELS: Catlin and other argue that steroids are unfair to athletes who don't use them. But steroids are also decried as dangerous to the user's health. At a sports medicine clinic near San Francisco, Dr. William Ross admits it is difficult to quantify the health risks, but he knows they exist, and he occasionally sees them.

DR. WILLIAM ROSS: If we take them in huge amounts, then it can cause high blood pressure, fluid retention, acne, hair loss. In women it tends to masculinize them, make them more like a male. And, interestingly, in men it tends to give them a higher voice and growth of breasts. It shrinks the testicles. It can create liver injury and, very rarely, cancause liver cancer.

SPOKESPERSON: Champion, Karl List!

SPENCER MICHELS: Karl List, a personal trainer who used to be a competitive body builder, used steroids on and off to bulk himself up.

KARL LIST: I never really experienced any real physical side effects except for the growth, okay? And since stopping their use, everything's been fine and normal.

SPENCER MICHELS: List said he used the steroids because his competitors did, and they worked.

KARL LIST: The most I ever squatted in my lifetime, drug-free, was 600 pounds. The most I ever squatted on drugs was 200 pounds more, was 800 pounds. So, I mean, you're talking about probably a 15 to 20 percent gain in just raw strength.

SPENCER MICHELS: List and many others are convinced the chemicals are easy to come by at gyms and elsewhere and that athletes believe they are necessary to compete at the highest levels.

KAR L LIST: Even though the stigma may be higher than it's ever been, I think there's a widespread use that's bigger than it's ever been.

SPENCER MICHELS: The government said the four men indicted were meticulous in their planning and their efforts to avoid being caught. In court today, they were released on their own recognizance. A bail hearing is slated for the end of February.

RECAP

JIM LEHRER: Again, the major developments of this day: Defense Secretary Rumsfeld announced a government panel will hear appeals by detainees at Guantanamo Bay, Cuba. And late today White House officials released all of President Bush's National Guard records to reporters. A reminder: "Washington week" can be seen on most PBS stations later this evening. We'll see you on line and again here Monday evening. Have a nice Presidents Day Weekendave a . I'm Jim Lehrer. Thank you and good night.