The NewsHour with Jim Lehrer

MARGARET WARNER: Good evening. I'm Margaret Warner. Jim Lehrer is off. On the NewsHour tonight: The news of this day; then the striking New York Transit Union agrees to return to work-- we analyze what that means for New Yorkers and for the rest of us; an on again/off again showdown over the Patriot Act -- we talk to Congress watcher Norman Ornstein; fears of levee breaks and flooding far from the Gulf Coast-- we have a report from California; an appeals court rebuffs the Bush administration in the case of terror suspect Jose Padilla-- we get an update from New York Times reporter Neil Lewis; and essayist Roger Rosenblatt comments on the music of this holiday season.

NEWS SUMMARY

MARGARET WARNER: New York City's transit union has ended its three-day strike. The workers' walkout crippled the nation's largest transit system, but it could start returning to normal tomorrow. The union was facing court- ordered fines of $1 million a day, and possible jail time for its leaders. Union president Roger Toussaint formally announced the strike's end this afternoon.

ROGER TOUSSAINT: I'm pleased to announce that the Local 100 executive board just voted overwhelmingly to direct transit workers to return to work immediately, and to resume bus and subway service throughout the five boroughs of New York City.

MARGARET WARNER: The union and the Transit Authority had resumed contract negotiations overnight, but they remain far apart on key issues like pensions and health care. We'll have more on this story right after the News Summary.

The fate of the Patriot Act bounced from the Senate to the House today, and back again. Last night, the Senate extended the anti-terror law another six months through June. That allows further negotiations on safeguarding civil liberties. But today the nearly empty House endorsed a five-week extension at the behest of Republican James Sensenbrenner. The chairman of the Judiciary Committee said he still favors a compromise that was filibustered in the Senate.

REP. JAMES SENSENBRENNER: The Senate will be back on Jan. 18. It will force them to deal with the issue of the Patriot Act conference report. The Senate is going to have to make a decision. They can either accept the conference report, which has over 30 additional civil liberty safeguards that are not in the current Patriot Act, or they can vote for extensions of the current Patriot Act that do not contain the civil liberty safeguards.

MARGARET WARNER: The issue now returns to the Senate for possible action this evening. The House did agree today to a defense spending bill passed by the Senate last night. It includes more than $450 billion in military spending. But it was stripped of a provision allowing drilling in the Arctic National Wildlife Refuge.

The U.S. military may be moving soon to cut its core force in Iraq by six thousand to seven thousand troops. The base level has been 138,000 most of this year, except for temporary increases for elections. Today, Defense Secretary Rumsfeld hinted at the dropping below that level when asked about reports that the planned deployment of two Army brigades would be cancelled. But he added: "Until it's announced, the government decision hasn't been announced, therefore, it's not final." Rumsfeld spoke en route to Baghdad, where he met with U.S. commanders.

Also in Iraq today, Sunni Arab and secular Shiite parties formally demanded that an international body review their claims of fraud in last week's election. But a United Nations spokesman rejected the idea.

Saddam Hussein insisted again today he had been beaten in U.S. custody. At his trial, the former dictator asserted that U.S. denials of his charge are lies comparable to Washington's pre- war claims that Iraq had weapons of mass destruction. Later, the judge who prepared the case against Saddam said there is no record of Saddam or his co-defendants ever before reporting any abuse. The court also heard more testimony on torture and killings in the town of Dujail. Saddam is accused in the murders of more than 140 Shiites there in 1982. The trial has now recessed for a month.

A new toxic spill in China threatened the water supply of seven million people today. The metal cadmium leaked from a smelter upriver from the major industrial city of Guangzhou, 60 miles from Hong Kong. Exposure to cadmium can cause cancer and kidney damage. Elsewhere, a polluted river slick from a benzene spill in northeast China reached the Russian City of Khabarovsk. Officials there said the levels are within a safe range.

New rules for U.S. airport screening took effect today. Passengers are now allowed to carry on some short tools, including scissors. But they face new random searches for explosives. The head of the Transportation Security Administration, Kip Hawley, said it's a matter of setting priorities.

KIP HAWLEY: Terrorists have had four years to adapt to our security measures. And we have put in place with hardened cockpit doors, federal air marshals and a lot of other things measures that have made scissors and small tools not a significant threat. However explosives remain a very significant threat. And we want to move our resources from something that is not a big risk to something that is.

MARGARET WARNER: Pilots have endorsed the new rules but flight attendants oppose them.

A state court jury in California awarded $207 million today to thousands of Wal-Mart workers. They claim they were illegally denied lunch breaks. But 40 similar class-action suits are pending against Wal-Mart nationwide. This was the first to go to trial.

In economic news, the Commerce Department reported today consumer spending rose 0.3 percent in November. That was slightly less than expected, and it raised questions about the strength of holiday sales. On Wall Street, the Dow Jones Industrial Average gained more than 55 points to close at 10,889. The NASDAQ rose more than 14 points to close at 2246. And that's it for the News Summary tonight. Now it's on to: The breakthrough in New York's strike; a Patriot Act showdown in Congress; fears of levee breaks in California; a terror suspect still in military prison; and a Rosenblatt essay on holiday music.

FOCUS - STRIKING A BALANCE

MARGARET WARNER: Now, the end of the New York City transit strike and the larger labor issues at hand. Jeffrey Brown has our story.

JEFFREY BROWN: The decision this afternoon by transit union officials to have members return to work promised relief for some seven million New York commuters enduring their third day without public transportation.

Negotiations between the Transport Workers Union, or TWU, and the metropolitan transportation authority, the MTA, had gone on all through last night. This morning, mediator Richard Curreri announced a breakthrough.

RICHARD CURRERI: We have requested the leadership of the TWU to take the actions necessary to direct its membership to immediately return to work, and they have agreed to take such actions.

JEFFREY BROWN: The nation's largest transit system came to a complete standstill on Tuesday. The action by the city's 33,000 transit workers was the first in 25 years. New York state law bars public employees from striking, and a judge had imposed $1 million-a-day fine on the union. Bitter negotiations had centered partially on wages and benefits. But pensions became the major sticking point.

The MTA dropped its initial demand to raise the retirement age for a full pension to 62 for new employees, up from 55 for current employees. But the Authority demanded that all future transit workers contribute 6 percent of their income for their first tenyears, instead of the current 2 percent.

Yesterday, union leaders blasted that proposal.

SPOKESMAN: They impose the negotiations, it's illegal and burdens the negotiations and should come off the table.

JEFFREY BROWN: This afternoon, New York City Mayor Michael Bloomberg warned that the issues involved in this battle could play out in other places as well.

MAYOR MICHAEL BLOOMBERG: The takeaway message is that the increased cost of pensions and medical care is a serious issue for every municipality and for every private, everybody in the public sector -- in the private sector as well. And everybody is grappling with the same set of problems. There are no easy answers.

JEFFREY BROWN: The strike forced millions of New Yorkers to brave frigid temperatures while walking, biking and carpooling to work. It also took a large economic toll, with many businesses reporting record low sales for the holiday season. Many New Yorkers were clearly put out, as traffic jams stretched for miles.

WOMAN: This is unconscionable. It is the worst time of the year they could do this, to cripple the working-class people -- just horrific.

JEFFREY BROWN: But some expressed support for workers and their decision to walk out.

WOMAN: I can understand them striking because of their pensions, because pension is very important, and who would want to wait till they're 62 to get their retirement money?

JEFFREY BROWN: This afternoon, Mayor Bloomberg said the city's buses could start running this evening, and the subways tomorrow morning.

JEFFREY BROWN: The two sides will now resume their contract negotiations, and apparently the key benefits and retirement issues remain on the table. To look at those and their impact beyond New York we're joined by Harley Shaiken, a professor at the University of California at Berkeley, who specializes in labor issues; and Rick Berman, a labor attorney and head of the Employment Policies Institute, a think tank funded by a variety of business groups and foundations. Welcome to both of you.

Harley Shaiken, starting with you, let's start with the issues particular to this very public fight in New York. Why do you feel that the transit union thought going on strike was a good idea? And why today did they decide to go back to work?

HARLEY SHAIKEN: Well, I think no one wanted this strike. There was this sense that this was the only alternative that they had. And I think the transit workers that came down in the final hour to the issue of pensions. There was principles and precedence that were involved here. And that caused them ultimately to use what might be called the nuclear option, which was going out on strike with all the cost that would be involved with that.

Now it is clear why they went back. It is one thing to contemplate the strike and to know your economic power and another thing once the fines were implemented and even larger fines and possible jail sentences were there pending.

So I think they went on strike knowing that it was a very, very difficult thing to do. But they felt that their future as a union and the implications this would have for the members for many years down the road would be at stake.

JEFFREY BROWN: And Rick Berman, from the perspective of the MTA and the city, what was the key thing for them to hold the line, and does it look like they were able to?

RICK BERMAN: Well, we don't know if they are going to be able to because although the employees are coming back on the job, they're still going to renegotiate or continue to negotiate the contract.

We don't know why these people took such a firm stand on the union side. But it's very clear that the MTA is taking the same stand that so many cities and towns and municipalities, even water districts are going to have to be taking over the years to come because there is now going to be a reckoning from accounting standpoint starting in 2007 for all of these small cities, states, again, municipalities, where they're going to have to actually project out what their costs of pension and health care -- healthcare benefits are going to be going into the future.

And today most of these governmental agencies are just accounting on a year-by-year basis. They're not projecting out how much this is going to cost in the future. When that number is on the table, they're either going to have to start cutting back benefits or cutting back services or else we're going to have an unsustainable situation in the future.

JEFFREY BROWN: Well, let me ask you, Mr. Shaiken, on the pension issue in particular in New York City it looks as though it came down to trying to create a two-tier system for current workers and future workers. Am I reading that right, and if so, why is that the key issue?

HARLEY SHAIKEN: Absolutely, you are reading it quite correctly. I'm actually getting a very bad feedback here.

JEFFREY BROWN: All right. We'll try to fix that. Let me ask the same question of Mr. Berman while we fix that.

Explain that, the two-tier issue here between future and present workers.

RICK BERMAN: Well, again, this is what makes this particular strike so difficult to understand. What the MTA said was to make this politically palatable they would only require reductions in pensions and in healthcare benefits for people who have yet to come to work for the subway or the transit system, that they were going to have a two-tier system, people would be grandfathered who are already on the job, and now there would be an additional payment made by new employees.

So the union was actually striking over the benefits for people who have yet to become employed or to become union members, which makes the whole situation that much more bizarre.

JEFFREY BROWN: Well, Mr. Shaiken, can you hear me okay now?

HARLEY SHAIKEN: Yes, I can now.

JEFFREY BROWN: Okay so, try to explain to us from the labor union's perspective why that would be important to hold the line on this two tier arrangement.

HARLEY SHAIKEN: Well, for two reasons: First that the new tier that is the 6 percent that new worker was pay, existing workers felt very strongly in the next round of contract negotiations that would become the standard, they would also be asked to pay.

Second, solidarity is a key issue for unions. And as Mr. Toussaint, the president of Local 100 put it, they wanted to protect the unborn, that is people who would be coming in, in the future. So they both had their own self-interest; that is, if they gave up what they had won with so many battles in the past for new workers, they, themselves, in future contract negotiations would pay that penalty.

As a result, that 6 percent introduced at the very last minute became the sticking point that did result in the nuclear option and precipitated the three-day strike.

JEFFREY BROWN: Do you, Mr. Shaiken, if we broaden this out a bit as Mr. Berman did, do you see -- and oh and also as Mayor Bloomberg did in our set-up where he talked about this applying in public and private sectors, how do you see the issues in New York playing out in other cities, for example?

HARLEY SHAIKEN: I think the very same issues we will see in many other cities and in theprivate sector as well; in fact, throughout most of 2005, we've seen enormous conflict and turmoil in collective bargaining over the issue of pensions and how to pay for health care.

What we're seeing in New York today is particularly dramatic and on a very large scale. But these are the same issues that are roiling collective bargaining throughout the United States, public and private sector.

And unless we begin addressing these through public policy, not simply on the level of one bargaining unit or one industry, I think we will see a lot more of this in the years to come.

JEFFREY BROWN: So Mr. Berman, when you weigh the tools that the unions have versus the cities or companies in the private sector, who has the upper hand or who has what tools that they can play at this point?

RICK BERMAN: Well, in the first case if we just look at New York, these union leaders and I stress the union leaders, not the union members themselves, were taken off a cliff. They violated the Taylor Law. It is illegal to strike if you are a public sector employee in New York.

It is no more legal for the transit workers, the bus drivers to strike than it is for policeman or for fireman. And so they were establishing a horrible precedent by going out on strike.

I do believe that there is an ethical and moral issue here that the union members have to address. And they have to understand that if they are going to work for a public sector union, that one of the things that they are giving up is the right to strike.

No one was required to work for the transit union without giving up that right. They knew it ahead of time when they went in there. If we take this out further, what we see if I can play off of what Harley said, what we see in the private sector is that these benefits become unsustainable over time and that companies are basically going bankrupt.

What is going to happen at the city level is that the cities will either go bankrupt or the cities will have to cut services or bond ratings of the cities will become so high that cities won't be able to float these bond offerings and get enough money in for infrastructure, et cetera. So this whole thing is unsustainable.

And Harley is right that something has to be done. But the something that has to be done is that the union leadership in many of these cases have to become more courageous. They have to become more moral in their -- in their delivery of services. They have to become more ethical and they have to face reality.

In the private sector businesses have found out that there is a country called China. In the public sector we're going to have to find out that the public, who the unions are really striking against, they're not striking against the city, they're striking against the citizens, they're going to have to find out that if the citizens don't want to pay for something, than they just can't demand it.

JEFFREY BROWN: Mr. Shaiken, how do you -- we all see these pressures in both the private and public sector. How do you see what should happen next for both labor and for management?

HARLEY SHAIKEN: Well, I think we have to look at history for a moment, in post World War II America this economy succeeded in important measure because we had a social contract between employers and employees, whether in the public or in the private sector, that essentially said you work hard, you raise productivity, you will be rewarded when you no longer work when you retire. Your health care will be taken care of. You will be provided with security.

What we're doing now is unraveling thatsocial contract and that has enormous implications for the economy, but for us as a society, we're essentially telling people that what they've worked so hard often giving their working lives for is become unraveled. And what they have been led to count on, they're no longer going to have. And that remains particularly important within the public sector.

There were, of course, legal issues under the Taylor Law but there were also moral issues here concerning the very hard work that people in this industry and the transportation sector, in New York do, working in tunnels eight hours a day, driving buses in demanding situations, these are hard, stressful jobs. What these workers were asking was hardly outrageous and done in the shadow of a billion dollar surplus this year for the Transit Authority.

Now admittedly, there are projections in the future that that surplus may not be there, that there may be a deficit. But that doesn't take away from the fact that that surplus is there today, and essentially not rewarding transit workers or seeking major take-backs within a contract negotiation I think set the context that ultimately spilled over into this strike.

JEFFREY BROWN: All right, well, we will see what happens in New York and beyond, Harley Shaiken and Rick Berman, thank you both very much.

MARGARET WARNER: Still to come on the NewsHour tonight: Congress wrestles with the Patriot Act; California worries about levees; a court rules on Padilla; and sleigh bells ring for Roger Rosenblatt.

FOCUS - SHOWDOWN

MARGARET WARNER: The high stakes drama over the Patriot Act. We begin with some background from the week.

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PRESIDENT GEORGE W. BUSH: It is inexcusable for the United States Senate to let this Patriot Act expire.

MARGARET WARNER: All week, President Bush warned of dire consequences if the Senate did not reauthorize major parts of the Patriot Act before they expired on Dec. 31.

PRESIDENT GEORGE W. BUSH: The senators obstructing the Patriot Act need to understand that the expiration of this vital law will endanger America and will leave us in a weaker position in the fight against brutal killers.

MARGARET WARNER: Faced with a Senate filibuster, the White House also declared the president would not support a temporary three-month extension of the current law. That compromise had been proposed Judiciary Committee Democrat Patrick Leahy, to give Congress more time to address the civil liberties concerns being raised by some members.

Last Friday, Majority Leader Bill Frist also insisted he wouldn't go along with the temporary measure.

SEN. BILL FRIST: I oppose a short-term extension of the Patriot Act. The House opposes such an extension. The president will not sign such an extension.

MARGARET WARNER: And again, on Tuesday --

SEN. BILL FRIST: I am absolutely ruling out, and I've said it 100 times, and I'll say it again.

MARGARET WARNER: But several Republicans had joined the Democrats in the filibuster, and in calling for the temporary extension to avert a crisis; New Hampshire's John Sununu and Idaho's Larry Craig among them.

SPOKESMAN: The point is we ought to do it. We ought to do it appropriately.

MARGARET WARNER: The Republican defections made it difficult for the White House.

REPORTER: There's clearly movement to more Republicans standing in opposition to the president on this. Why not --

SCOTT McCLELLAN: No, I think -- let's make it clear. Almost all Republicans in the Senate support this.

MARGARET WARNER: But late last night, with senators eager to leave for the holidays stuck on the Senate floor, word came that a deal had been reached to temporarily extend the current Patriot Act for six months. The exhausted senators quickly approved the deal unanimously, not even bothering with a roll call vote.

SPOKESMAN: The ayes have it; the conference report is agreed to.

MARGARET WARNER: Majority Leader Frist later explained his change of position.

SEN. BILL FRIST: The president has made it very clear he did not want a short-term extension. So what I've tried to do is rise above the partisanship, work with the Democratic leader, and he and I mutually agreed on the six months.

MARGARET WARNER: Wisconsin Democrat Russ Feingold saw it differently.

SEN. RUSS FEINGOLD: They lost that game of chicken. In fact, the attorney general and the president said there was no way they would sign any temporary extension. It was their way or the highway. It had to be permanent despite the fact that the Patriot Act hadn't been fixed but they did not prevail. The Senate prevailed.

MARGARET WARNER: But today, House Judiciary Committee Chairman James Sensenbrenner refused to agree to the Senate's compromise and on the House floor early this evening, pushed through a five-week extension of the Patriot Act, sending it back to the Senate for action tonight.

REP. JAMES SENSENBRENNER: They came pretty close to wrecking everybody's Christmas; I didn't want to put the entire Congress in the position of them wrecking everybody's Independence Day.

MARGARET WARNER: Now to explain what happened, and what happens next, we're joined by Norman Ornstein, veteran Congress watcher from the American Enterprise Institute.

Norm, make sense of this for us, first start on the Senate side, why initially would the White House and Republican leaders so adamant of not having a temporary extension only to give in last night?

NORMAN ORNSTEIN: They believed that they had a deal; it was a deal that had been worked out by House Republicans and the White House that basically extended the law. They thought they had made concessions. The original Patriot Act had a seven-year sunset provision on most of its major portions -- that it would have to be reviewed.

The White House originally wanted it to make it permanent. They agreed to basically extend it another four years in most of these major provisions. They thought that was enough. But a number of Senate Republicans and Democrats didn't like some of these provisions, including, especially, things that would take away core protections from searches of business records or libraries and wanted a change.

The White House and the Senate Republican leadership thought that they could play a game of chicken with these people who objected and forced them in the end with the idea that if the Patriot Act which expires at the end of the year went under for any length of time, America would be vulnerable.

But in the end, for a variety of reasons, including most prominently the revelation about the wiretaps that emerged in the middle of this discussion, the worm turned, as it were, and they were forced to cave at the end although it wasn't the end as it turns out.

MARGARET WARNER: Almost looked like the end until 5 o'clock this afternoon.

When was the deal actually cooked and who cooked it last night? And we saw these guys milling around on the Senate floor waiting, waiting.

NORMAN ORNSTEIN: You know, for those of us who watch C-Span and the Senate --

MARGARET WARNER: I admit I even watched a little last night.

NORMAN ORNSTEIN: Well, it was particularly frustrating because they were in an endless quorum call where every five minutes they call a name and people were milling around. But it was just an excuse so that Sen. Frist and Sen. Feingold and a number of others could work out a deal.

The people who wanted to change the act that was going through asked for a three-month extension. Sen. Frist had said no temporary extension. To save face, in a way, he agreed to a six-month extension until he found that the House decided to pull the rug out from under him.

MARGARET WARNER: Now did he have the White House on board for that six-month extension?

NORMAN ORNSTEIN: The White House had to get on board in the end, basically, because they knew that they had no choice -- that in the end, if the Patriot Act expired after the way this had transpired, it would look as if the president had turned down an opportunity to negotiate further.

MARGARET WARNER: All right, so everyone wakes up this morning and the wires were saying it looks like the House is going to go along with this, the six-month extension. Then what happens. I mean, did James Sensenbrenner single-handedly do this?

NORMAN ORNSTEIN: Yes, he did. Keep in mind, Margaret, that the House had passed this, the budget bill, appropriations bill and then left town, and basically said to the Senate take it or leave it. So the House is away.

Now the Senate makes the changes that they've made, send it back to the House for what is supposed to be a pro forma session and said take it or leave it and the House didn't take it. And they gave the Senate back a present from Mr. Sensenbrenner in the form of an exploding cigar basically saying we don't like your compromise. We're going to give you something else, a one-month extension.

And now the Senate will be back in session at 8:00 this evening, something they did not want or hope would happen to figure out what to do with that.

MARGARET WARNER: But, I mean, was this just a power play between the House and the Senate, or was there a substantive reason why Sensenbrenner thought a shorter time period was better?

NORMAN ORNSTEIN: You know, it's -- it's games within games within games and end games within end games. And you have Democrats and Republicans at odds, House and Senate at odds. And frankly, Sen. Frist and Sen. Specter, the chairman of the Senate Judiciary Committee who is now going to have to deal with this at the same time he is dealing with the hearings on Judge Alito -

MARGARET WARNER: Judge Alito.

NORMAN ORNSTEIN: -- is going to be furious about this.

But there was a point to what Mr. Sensenbrenner was doing, which is if you postpone this six months you may end up with an end-game in six months. Let's force the action in a month and see whether we can work out some kind of a compromise. But we'll have another brinksmanship process that will occur at the end of January, now it is the 3rd of February.

MARGARET WARNER: When Sensenbrenner had his press conference late today he also said he had been talking to the White House. Now do you have any idea or have you heard anything about how the White House feels about this? Now they ended up with an even shorter short-term extension than they said they wanted initially.

NORMAN ORNSTEIN: Frankly, the White House was a spectator in this more than a participant. Mr. Sensenbrenner is a very stubborn person and when he was going to dig in on this, there was not much that they could do.

MARGARET WARNER: And technically explain why can one member do that? Is that because when the House is gone they need unanimous consent for their vote?

NORMAN ORNSTEIN: Yes, there are other interesting twists here. The House originally after the Senate had acted late last night basically said let's just get this done in a pro forma session five or six numbers on -- members on the floor by you unanimous consent.

The Democratic leader, Nancy Pelosi, who has many objections to the things that occurred said no. And now coming back Mr. Sensenbrenner said fine, we're not going to let it go through. I'm not going to let it happen. I don't care if the Patriot Act expires. I'm not going to let the Senate get away with this. So the force of will of one person can make a real difference here.

MARGARET WARNER: So in a word or in a couple sentences, is there any reason to think that they are going to be able to reach a compromise on the toughest sticking points if they have another month?

NORMAN ORNSTEIN: You know, the bill that passed the Senate, that is the bill that the -- that Senators Feingold and Sununu and the others who filibustered this want -

MARGARET WARNER: These additional protections.

NORMAN ORNSTEIN: -- these additional protections passed the Senate unanimously. Then it went to the House where the House Republicans put their own bill together. They can probably find a compromise here but it's going to take some give-and-take from the House Judiciary Committee chairman who doesn't like to give and only likes to take.

MARGARET WARNER: And is pretty annoyed right now.

NORMAN ORNSTEIN: Very annoyed.

MARGARET WARNER: Norm Ornstein, thanks so much.

FOCUS - FLOODING FEARS

MARGARET WARNER: The devastation caused by levee breaks after Hurricane Katrina has prompted a hard look at levees elsewhere. Spencer Michels has this science unit report from California.

SPENCER MICHELS: This is not New Orleans, 2005. Rather, it's Linda, California, north of Sacramento, 1986, when the Sacramento River broke through the levees that are supposed to contain it.

In 1997, more than 30 levees ruptured, killing nine people and flooding large areas of the state. But that flood, like others, was essentially forgotten within a few months, says University of California geologist Jeffrey Mount.

JEFFREY MOUNT: It got everyone's attention. Everybody ran around in circles and said, "We've got to do something about these levees, and do something about flood control here, and nothing happened.

SPENCER MICHELS: Now Hurricane Katrina and the devastation in Louisiana have renewed California's fears a similar event could happen here, even as thousands of new homes are being built in vulnerable areas.

JEFFREY MOUNT: Katrina showed us what could happen. In that time, the population has skyrocketed, particularly on the flood plains.

SPENCER MICHELS: Mount points out that a court recently ruled that the state is liable for damage from most levee breaks, even if it didn't build the levees.

JEFFREY MOUNT: You could bankrupt this state if you had a major levee failure in one of the large metropolitan areas.

SPENCER MICHELS: What Californians worry about is a so-called "Pineapple Express," a series of warm storms coming in from the Pacific Ocean that can melt the snow in California's mountains and dump more water on the state than its rivers can handle. That fast-moving water can undermine and overtop a levee and create havoc.

The area most at risk is California's central valley, along the Sacramento and San Joaquin Rivers, which carry huge quantities of water from the Sierra Nevada Mountains to San Francisco Bay.

Cities built behind the valley's thousands of miles of levees are especially vulnerable, and so is the delta.The delta is a large, mostly below-sea-level region where water from the two rivers courses through hundreds of channels towards the bay past primitively constructed dirt levees built a century ago.

Freshwater from the delta supplies 23 million people in urban southern California and the bay area, and irrigates some of the most productive farmland in the world. If levees were to break, saltwater would be sucked into the delta from San Francisco Bay, ruining the water quality and halting the flow of water south.

JEFFREY MOUNT: This is the fifth-largest economy in the world, and what happens to this economy affects the world. So that's why you worry about it at the highest levels, the disruption of water supply.

SPENCER MICHELS: Storms aren't the only hazard. Mount estimates there is a two in five chance that an earthquake like the one that hit northern California in 1989 will strike the delta by 2050. And that could trigger devastating levee breaks, says Les Harder, chief flood manager for California.

LES HARDER: If we get a large number of islands flooding at the same time, ten, fifteen or so, that might be beyond our ability to recover from. And that would be extended outages of water export for the state and its economy, maybe for a very long time. You'd be looking at maybe $30 to $40 billion.

SPENCER MICHELS: Mike and Jerry Robinson live and farm behind levees on an island in the delta, and they have put up with flood danger all their lives. The Robinsons' grandfather and father, like other delta property owners, hired Chinese laborers to build the levees with whatever material was at hand, so the land could be farmed.

Today, even though the state, the Army Corps of Engineers, some cities and local property owners all have some responsibility for maintaining or repairing levees, they still fail with some regularity.

JERRY ROBINSON: What happens periodically are rodents bore through the levees on the below-sea-level islands, and they start leaking at night or when nobody's around, and then all of a sudden a small problem becomes a huge problem.

SPENCER MICHELS: It was a huge problem last year, when a levee on an island known as Jones Tract gave way, ruining crops, shutting down a railroad and destroying roads. The local property owners tried to fix the problem through their reclamation district, but it was too big for them to handle.

JERRY ROBINSON: The local entities ran through their resources in a period of a day. We had rocks on barges and dredgers waiting, but we just had no money. And the state came along, the governor came down, said, "We will help," but it was three days later.

SPENCER MICHELS: Jones Tract repairs and damage totaled $100 million. But that's small compared to the several billion it could cost to upgrade all central California levees, and upgrading is considered vital; whether from earthquake or storms, major damage is envisioned for heavily populated areas along rivers, especially Sacramento, where up to 400,000 people live in danger zones.

Like many American cities, Sacramento lies at the confluence of two major rivers. Old Sacramento, where the town began, used to flood regularly. Now it's a tourist area in the shadow of the Sacramento River levee. And in outlying areas not far from the levees, the population has grown tremendously.

Sacramento's levees are designed to protect the city from floodwaters that experts predict could occur once in a century.

LES HARDER: Sacramento has probably got the lowest level of protection for an urban area anywhere in the United States. It only hasabout 100-year level of protection.

SPENCER MICHELS: Even lower than New Orleans?

LES HARDER: Much lower than New Orleans. Most river cities of comparable size seek protection on the order of 300- to 500-year level of protection.

SPENCER MICHELS: Some of Sacramento's most expensive homes sit just on the other side of this levee, and should the water come over or under or through, the neighborhood could be underwater.

RUSS ECKMAN: You can see the roots of the trees here just how much material we've actually lost out of this site in just the last couple of years.

SPENCER MICHELS: Russ Eckman works on Sacramento area levee maintenance for the state.

RUSS ECKMAN: The water just rips right through here, and erodes it out, and you can see by these soils they're not really all that strong. It doesn't take a whole lot to break these soils down and wash them away. It's not if they are going to fail; it's when they are going to fail.

SPENCER MICHELS: That's a scenario city emergency planners Dave Brent and Jerry Colivas have been anticipating.

DAVE BRENT: The red area is the area that would fill up with a foot of water within two hours.

JERRY COLIVAS: We want to get those people out as quickly as possible. Ultimately, the water gets a lot deeper, and in fact, the water gets to be about 17-feet deep in this area.

SPENCER MICHELS: Seventeen feet deep?

JERRY COLIVAS: Yes.

SPENCER MICHELS: Sacramento officials watched in horror what happened in New Orleans, especially the lack of buses to evacuate residents.

JERRY COLIVAS: I said, you know, "Oh, my God, that's a real problem." And, you know, it rekindled me to say we really have to nail down our transportation.

SPENCER MICHELS: Sacramento would be easier to evacuate than New Orleans since there are many highways nearby, and high ground is fairly close.

But planning for disaster and strengthening levees address only part of the problem. Environmentalists and others fault California builders, who continue to construct homes near levees.

This development at Lathrop, south of Sacramento, was underwater in 1997. It sits just across the San Joaquin River from the island the Robinson brothers farm. In fact, they sold some of their land for development.

MIKE ROBINSON: This was a choice of the community, the city, to build here, to develop it. And it was a choice of the homeowners to buy here and to live here. It was their choice.

SPENCER MICHELS: But what's your gut feeling? Would you build or buy here?

MIKE ROBINSON: I probably would not buy a home here.

SPENCER MICHELS: Because?

MIKE ROBINSON: I know that there will be high water again. I know there may be seepage. I know that water may accumulate in areas and they may be at risk.

SPENCER MICHELS: In the delta town of Oakley, developer Shea Homes is building a large subdivision near a river, protected, they say, by a new $4 million, three-mile-long levee around the entire project. Vice president Don Hofer says the state needs such development.

DON HOFER: We live in a state today that is in dire need of new housing. And a lot of those opportunities exist in areas that are protected by levees. We disclose the entire situation to prospective homebuyers.

SPENCER MICHELS: Despite critics who contend that there are no completely flood-proof levees, the plan has the backing of Oakley Vice Mayor Brad Nix.

BRAD NIX: There is no place which doesn't have some risk of harm from something. That just the reality of life. What about tornadoes in the Midwest, what about hurricanes in Florida?

SPENCER MICHELS: But the inevitability of flooding has convinced geologist Jeffrey Mount to lobby not just for improving levees, but for state involvement in new development, since, he contends, local politicians are often swayed by developers.

JEFFREY MOUNT: There's a tremendous amount of money to be made by developing on the flood plains. And it is a ruse, an absolute ruse that there isn't room for development outside of the flood plains.

SPENCER MICHELS: All these problems, plus Katrina, have spurred the California legislature to look for solutions.

LOIS WOLK: There are people and communities that are in harm's way unless we invest in our flood infrastructure.

SPENCER MICHELS: Democratic assemblywoman Lois Wolk is pushing for the state to provide guidelines for land use planning in flood plains.

LOIS WOLK: It is immoral, and frankly irresponsible, to continue to build in the flood plains -- to put our houses there, to put people there, to put schools there.

That is irresponsible, and it's fiscally irresponsible as well because the state is entirely responsible for what happens to those people, not only their lives, but their property.

SPENCER MICHELS: Her plan would make it more difficult to build in flood plains without stronger, state-imposed flood protection, a plan opposed by developers.

DON HOFER: Some regulatory oversight is obviously necessary. We've had that on this project. But does it mean that the state needs to control land use? I don't think so.

SPENCER MICHELS: The legislature will take up flood protection in early 2006. California is considering a bond issue to strengthen its levees, and is asking the federal government for help.

Meanwhile, perhaps 200,000 homes are slated to be built in the delta and near unpredictable rivers in the next few years.

UPDATE - STILL IN THE BIG

MARGARET WARNER: Ray Suarez has the Padilla story.

RAY SUAREZ: Jose Padilla is an American citizen arrested in Chicago in 2002, and accused of plotting a radioactive bomb attack, but never charged and never tried. He's been held for years in a naval brig in South Carolina.

Last month, the administration charged Padilla, but with a different crime from the one they accused him of in 2002: Raising funds and recruiting fighters to fight outside the U.S. The government requested, among other things, that Padilla move into civilian custody to await trial. But yesterday, a federal appeals court denied that request.

To explain this latest development, we're joined by Neil Lewis of the New York Times.

And Neil, how did it happen that the court that, in effect, gave George Bush the right to declare Jose Padilla an enemy combatant is now saying well, wait a minute, you can't transfer him to this civilian court for trial?

NEIL LEWIS: That's precisely what makes the rebuke the court delivered to the administration so extraordinary. They weren't challenging President Bush's ability to detain this man as an enemy combatant. They had already given him that power.

But they were challenging the behavior of the government, suggesting that the government was manipulating the case, manipulating the courts and trying to avoid review in the Supreme Court.

And in some extraordinary language in this order yesterday Judge Michael Luttig, who wrote for the three-judge panel said that the government was risks its credibility by doing this in future terrorism cases -- that other judges may not believe the assertions made by the government when they come in court.

And further, he said, you know, you have made it appear to the public that you might have kept thisman in detention for more than three years unjustifiably.

RAY SUAREZ: So by Judge Luttig's reasoning, if I follow this, if the government had gone ahead and charged him with what they said they were holding him for in the first place, he wouldn't have objected?

NEIL LEWIS: That's right. That's right. What's extraordinary, as you say is this court had given President Bush the power to detain him as an enemy combatant.

When they made the switch, when the government made the switch in tactics and sought to have him transferred from military custody to civilian custody, the government, the administration, the Justice Department thought this would be the simplest, most perfunctory thing -- that the court would say fine, go ahead and do that, it is no longer a case, doesn't matter any more, go ahead and do it. And to their shock, these judges these appeals court judges objected.

Judges don't like to be -- to feel they might have been used in some pursuit of something that's not going to be used that's part of a strategy. So I believe what happened is the judges thought they had expended an enormous amount of their legitimacy and intellectual capital and institutional capital on agreeing with the administration.

And then the administration turned around and said never mind, we're not going that way, we're going a different way, we don't need that. This was greatly offensive and I don't think it is a liberal or conservative issue.

I don't think it is a Democratic or a Republican issue. I think it's an --institutional judiciary judges being quite angered at the executive branch feeling they were fooled with and toyed with.

RAY SUAREZ: Now when the Bush administration asked the Fourth Circuit Court to help orchestrate this transfer to civilian jurisdiction, they also asked that this court's earlier decision on this case be vacated; why did they do that?

NEIL LEWIS: I think it was part of the same effort to ensure that the case did not go up to the Supreme Court for review. If they got the appeals court to vacate their opinion, there is nothing for the Supreme Court to review. It's part of their effort to say this is moot now; the case is moot now. The guy is no longer being held by the military so there is nothing for the Supreme Court to review.

I think the evidence is overwhelming that the reason the administration shifted their strategy and tried to try Jose Padilla in a civilian court was they were afraid of a Supreme Court review. They had been losing in the courts recently in similar cases involving terrorism. And I think they chose not to risk it.

And the judges were clearly offended. In fact, Judge Luttig who is a major conservative voice and has been considered by President Bush for the Supreme Court, was so extreme in his language and harsh in his language, said this is an issue of such importance that it deserves to be heard by the Supreme Court, in effect, a bit of an irony saying, they deserve a chance to reverse me, to reverse me, to reverse our decision on Padilla. You can't stop in the middle. You can't call time-out.

RAY SUAREZ: And judges don't often ask for their decisions to be reviewed.

NEIL LEWIS: No, of course not. They don't like that. But he -- he suggested there was a stronger principle at work here.

RAY SUAREZ: Did Judge Luttig conclude that the administration in his opinion -- conclude that the administration was trying to avoid high court review?

NEIL LEWIS: He was quite careful and punctilious about his language. He kept saying this was the appearance of it. He said I don't know why theydid it because they haven't told us.

Judge Luttig and the three-judge panel asked the government to explain its behavior. And it only came in with a brief that said it's moot now, there's not a problem. We want him transferred.

So in terms of the writing, it was -- the craftsmanship of the writing was quite intriguing. He did not assert that they were misbehaving but he made his judgments quite clear.

RAY SUAREZ: But by winning a point against the Bush administration, Padilla and his legal team end up with their client still in the brig in Charleston.

NEIL LEWIS: Yes. But they still have the opportunity to have it, which was what they had wanted, be reviewed by the Supreme Court.

But you are quite right, at the end of that, the government can turn around and say no, well, we want to try him in the civilian court on these terrorism charges.

But this -- this is what Mr. Padilla's lawyer -- lawyers had sought.

RAY SUAREZ: Neil Lewis, thanks for being with us.

NEIL LEWIS: Thank you, Ray.

ESSAY - MERRY LITTLE CHRISTMAS

MARGARET WARNER: Finally tonight, a little Christmas cheer from essayist Roger Rosenblatt.

SINGING: Simply having a wonderful Christmastime -- simply having

a wonderful Christmastime --

ROGER ROSENBLATT: Am I alone in this or are you too going nuts because of the music of the season? Relentless, ubiquity is, ruinous endless.

BURL IVES SINGING: Have a holly, jolly Christmas. It's the best time of the year --

ROGER ROSENBLATT: Burl Ives is long dead but his "Holly Jolly Christmas" lives forever.

GENE AUTRY SINGING: Rudolph the red-nosed reindeer --

ROGER ROSENBLATT: As does Gene Autry's "Rudolph the Red-Nosed Reindeer"

JUDY GARLAND SINGING: Have yourself a merry little Christmas --

ROGER ROSENBLATT: As does Judy Garland's "Have Yourself a Merry Little Christmas," as does Bing and Rosemary Clooney --

BING CROSBY AND ROSEMARY CLOONEY SINGING: I'm dreaming of a white Christmas --

CHIPMUNKS SINGIN: Dashing through the snow --

ROGER ROSENBLATT: And the Chipmunks. Now that I think of it, most of those who originally brought us these songs are long at peace.

I assume that the Chipmunks are at peace as well. Blissfully they lie beyond the reach of their own joyful noises, aye, as yet enough -- and the beat goes on, and on, everywhere -- in restaurants.

SINGING: The mood is right --

ROGER ROSENBLATT: In gas stations. In malls --

SINGING: We're here tonight .

ROGER ROSENBLATT: On the radio. On TV --

SINGING: Simply having a wonderful Christmastime --

ROGER ROSENBLATT: I was at a rest stop on the New Jersey turnpike when Paul McCartney's "Simply Having a Wonderful Christmastime" was piped into the men's room.

People on the New Jersey turnpike are on edge as it is. I'm on edge myself. Everyone seems to have cut a holiday album.

BING CROSBY SINGING: Chestnuts roasting on an open fire --

ROGER ROSENBLATT: Last night I dreamed that Donald Rumsfeld had recorded his yuletide favorite. Dick Cheney was singing, "Dreidel, Dreidel."

And the senator from Massachusetts crooned, "Have yourself a Kerry little Christmas" --

I told you I was losing it.

CHIPMUNKS SING: Christmas, Christmastime is near --

ROGER ROSENBLATT: How many times a day can one here "Rocking around the Christmas Tree" without wanting to roast the Chipmunks on an open fire?

SINGING: Here comes Santa Claus --

ROGER ROSENBLATT: How often can one tolerate lyrics about Santa. Santa sells. Santa, trees -- Santa, and Santa; it's not the songs themselves, well, not entirely. It's the insistent repetition.

SINGING: Frosty the snowman was alive as he could be --

ROGER ROSENBLATT: I assume that long ago some focus groups decided that the eternal playing of "Frosty the Snowman" encouraged shoppers.

Thank you, focus group.

The other day an ordinarily serene and gentle friend of mine said that she wanted to shoot Rudolph in flight. They don't sing songs like that in other seasons, she said.

That is true. Other seasons have perfectly lovely songs.

SINGING: Summertime -- autumn in New York

SINGING: Spring is here .

ROGER ROSENBLATT: Then comes winter.

CHIPMUNKS SING: Here comes Santa Claus -- here comes Santa Claus right down --

ROGER ROSENBLATT: Here comes Santa Claus, here comes Santa Claus, right down Santa Claus Lane.

(Gunshot sound)

ROGER ROSENBLATT: Of course this is a bootless rant. The songs of the holiday season will go on long after we are all at peace.

And to be sure, there are a few sublime moments every winter when one is reminded of what real music sounds like and faith and beauty sound like as well.

(CHOIR SINGING)

ROGER ROSENBLATT: If I still had my marbles, I would say that the soaring magnificence of Handel's "Messiah" was enough to make up for the Chipmunks simply having a wonderful Christmastime -- but it isn't enough and I don't have my marbles.

CHOIR SINGING: Hallelujah!

ROGER ROSENBLATT: Have a holly jolly Christmas. I'm Roger Rosenblatt.

RECAP

MARGARET WARNER: Again, the major developments of the day: New York City's Transit Union ended its three-day strike, the U.S. House passed a five- week extension of the Patriot Act; the issue went back to the Senate, which approved a six-month extension last night. And a California jury ordered Wal-Mart to pay $172 million to thousands of employees for denying them lunch breaks. A court clerk initially reported a higher figure. We'll see you online and again here tomorrow evening with Shields and Brooks, among others. I'm Margaret Warner, thanks for being with us. Good night.