The NewsHour with Jim Lehrer

GWEN IFILL: Good evening. I'm Gwen Ifill. Jim Lehrer is off. On the NewsHour tonight: the news of this Tuesday; then, a judge rules intelligent design does not belong in a science classroom -- what is it, and why does it matter? We'll analyze today's court decision; the shadowy National Security Agency: Is it spying on Americans, and what is it anyway? We ask a former CIA director and the author of two books on the agency; plus, a look at the latest tilt toward socialism in South America, this time in Bolivia.

NEWS SUMMARY

GWEN IFILL: A federal judge in Pennsylvania ruled today against teaching intelligent design in public schools. Last year, the Dover area school board mandated ninth graders hear about alternatives to evolution.

But today, U.S. District Judge John Jones ruled intelligent design, which credits an unseen creator with human development, has no place in a science curriculum. He called it a "mere re-labeling of creationism, and not a scientific theory." And he said the real purpose was to "promote religion in the public school classroom." We'll have more on this story right after the News Summary.

Thousands of transit workers in New York City went on strike today. Millions of commuters had to find new ways to get to work. Crowds walked across the Brooklyn Bridge during morning rush hour. Others hailed taxis, car-pooled, or rode bicycles. It was the first citywide transit strike since 1980. The union said the Transit Authority provoked the walkout over pay and benefits. But the city said the strike was clearly illegal under state law. The two sides spoke at separate briefings.

ROGER TOUSSAINT, President, Transport Workers Union: We did not want a strike but evidently the MTA, the governor and the mayor did. We call on all good-will New Yorkers, the labor community, and all working people to recognize that our fight is their fight and to rally in our support with activities and events in solidarity.

MAYOR MICHAEL BLOOMBERG, New York City: The leadership of the TWU has thuggishly turned their backs on New York City and disgraced the noble concept of public service. This strike is costing us. It is costing people their jobs. It will cost billions in lost economic activity.

GWEN IFILL: Later, a state judge fined the union $1 million a day. City officials said the strike could cost New York as much as $400 million a day.

Federal investigators looked for answers today in the crash of a seaplane off Miami Beach. The plane broke apart and went down yesterday, just off shore. All 20 people aboard were killed. Most of the wreckage was in 35 feet of water, blocking a narrow channel that cruise ships use. Officials said it could be tomorrow before crews finish raising the plane. So far, there is no indication of what caused the crash.

Democrats today insisted they never approved secret domestic surveillance without getting a warrant first. President Bush defended the effort yesterday. He cited a congressional resolution authorizing the use of all necessary force against terrorists after 9/11.

Today Democratic Sen. Chuck Schumer of New York questioned that reasoning.

SEN. CHARLES SCHUMER: Certainly I, who voted for that resolution, never even thought it applied to wiretapping; I don't think anyone else did as well. To say when we authorize the president to use force that that allows him to wiretap American citizens without a warrant is stretching it, to say the least.

GWEN IFILL: Vice President Cheney today credited the program with preventing another attack inside the United States, and White House Spokesman Scott McClellan insisted Congress was filled in more than once.

SCOTT McCLELLAN: Congress is an independent branch of government. And they're elected by their constituents. We briefed and informed members of Congress about this program going back to 2001 more than a dozen times since then; we've briefed members of Congress.

GWEN IFILL: We'll have more on the National Security Agency, which conducts the surveillance, later in the program.

In a related development, it was widely reported today the F.B.I. has monitored advocacy groups representing causes ranging from the environment to animal cruelty. F.B.I. officials said they focused on evidence of criminal or violent acts, and not political activities.

The Senate labored today to finish its work for the year. But there was no final action on several major issues: The Patriot Act, a deficit reduction bill, and oil drilling in the arctic. Jeffrey Brown has our report.

JEFFREY BROWN: Democrats and a handful of Republicans continued to oppose renewal of the Patriot Act today, arguing it must first be amended to ensure greater protection of civil liberties.

The post 9/11 law expanded the government's anti-terrorism police powers and expires at the end of the year. New York Democrat Chuck Schumer pushed a plan for a temporary extension of the act and called for more negotiations with the Bush administration.

SEN. CHARLES SCHUMER: The simple fact is if we extend the Patriot Act for three months, it won't end. So the act is in the president's hands. And we say to the president, extend it, don't end it.

JEFFREY BROWN: But New Hampshire Republican Judd Gregg says Democrats, specifically Minority Leader Harry Reid. were out to kill the act altogether.

SEN. JUDD GREGG: I would simply point out that the Democratic leader said, "We killed the Patriot Act." So that's where the body lies. It doesn't lie on this side of the aisle. It doesn't lie at the White House. The body lies right there.

JEFFREY BROWN: Democrats and a few Republicans also threatened to stall action on a $435 billion defense bill after Alaska Republican Ted Stevens added a provision to open the Arctic National Wildlife Refuge to oil drilling. Wisconsin Democrat Russ Feingold.

SEN. RUSS FEINGOLD: Funding for our brave men and women in uniform should not be jeopardized by including a highly controversial and unrelated provision to open up the Arctic National Wildlife Refuge for drilling.

JEFFREY BROWN: Sen. Stevens said even if Democrats succeed in stripping the provision from the bill this week, it will return.

SEN. TED STEVENS: I've got to tell you if we go to new conference I'm going to argue to put it back in. It should be there. And the vote's in the conference to put it back in.

JEFFREY BROWN: The Senate also hoped to act on a $40 billion deficit reduction measure. Opposition from Democrats and a few moderate Republicans over proposed cuts to social programs signaled a very close vote.

GWEN IFILL: Vice President Cheney headed home early from his overseas trip, in case he's needed to break a tie on the deficit bill.

In Iraq today, Sunni Arabs charged fraud in last week's elections. They rejected partial returns that showed a Shiite coalition with a commanding lead in Baghdad province. Sunnis had a heavy turnout there, and a Sunni coalition called the reported results a "falsification of the will of the people." The group warned of "grave repercussions on security and political stability" if the returns stand. Final numbers aren't expected until early January.

A man involved in hijacking a TWA jetliner in 1985 and killing an American is now out of prison. Germany confirmed today Mohammed Ali Hamadi was released four days ago. He served 19 years of a life sentence. The hijackers commandeered a flight from Greece and forced it to Beirut. They killed one passenger, U.S. Navy diver Robert Stetham. Hamadi was arrested in Frankfurt, Germany, two years later.

The likely presidential winner in Bolivia called President Bush a "terrorist" today. Evo Morales also told al-Jazeera the U.S. invasion of Iraq was "state terrorism." Also today, Morales said he wants Bolivians to vote on controlling coca, the crop used to make cocaine. He campaigned against a U.S.- funded eradication program. We'll have more on Morales later in the program.

Israeli Prime Minister Ariel Sharon was released from the hospital today. He suffered a mild stroke over the weekend. The prime minister said he's eager to get back to work, and lead his new party into elections next March. He said the stroke will not affect his ability to function.

In U.S. economic news, inflation at the wholesale level fell last month by the most in two and a half years. The Labor Department reported today producer prices fell 0.7 percent, led by a drop in energy costs.

On Wall Street today, the Dow Jones Industrial Average lost nearly 31 points to close at 10,805. The NASDAQ fell a third of a point to close at 2222.

That's it for the News Summary tonight. Now it's on to banning intelligent design; eavesdropping at the NSA; and profiling Bolivia's new president.

UPDATE - DESIGN DECISION

GWEN IFILL: The Dover intelligent design decision, and to Margaret Warner.

MARGARET WARNER: Today's ruling by Federal Judge John Jones came in the nation's first case testing the constitutional merits of offering students intelligent design as an alternative to evolution.

Here to talk about the case out of Dover, Pennsylvania, and today's ruling, is Laurie Goodstein, who's been covering the trial for the New York Times.

Laurie, welcome.

LAURIE GOODSTEIN: Thank you.

MARGARET WARNER: First of all, briefly remind us of the facts of this case, how it came about.

LAURIE GOODSTEIN: The Dover school board thought they were doing something very modest when they voted to read students a very brief statement at the start of their ninth grade biology class saying that there are reasons to question the theory of evolution. There are gaps in the theory and that there are alternatives that the students should look at including intelligent design. And it referred them to a textbook called "Of Pandas and People" that they put in the high school library.

MARGARET WARNER: And this was pushed by what, a majority of the school board members?

LAURIE GOODSTEIN: Yes, it was a majority of the school board members, led in particular by two school board members who had had a record of advocating teaching creationism at school board meetings.

MARGARET WARNER: And there was a six-week trial. Both sides called all kinds of experts. What did it focus on? What were they arguing about?

LAURIE GOODSTEIN: Well, the trial treated not only the specific situation in Dover but also the merits of intelligent design. There were scientists on both sides who argued for and against including intelligent design. The question was whether it should be taught as a science in a science class.

MARGARET WARNER: All right. So, sum up the gist of the judge's ruling. In other words, he found this was unconstitutional on what grounds?

LAURIE GOODSTEIN: Well, the ruling is a very strong rebuke to advocates of intelligent design who have tried to put distance between their theory and creationism. They say that their theory is not religion, that it is a science.

But the judge ruled that there was really no way to see it other than as a re-labeling, he called it, of creationism; that it had historical ties as a movement to creationism and creation science; and that the Supreme Court has already ruled that it's unconstitutional to teach creationism because it's religion.

MARGARET WARNER: At one point right in the conclusion, even though this is a big, long decision -- it's only four pages -- he accuses some of the members of the school board of actually lying. What was he referring to?

LAURIE GOODSTEIN: Right. He said that two members of the school board had tried to cover up their motive, that they had religious motives, and that they in part lied about how the textbooks, "Pandas and People" textbook came to be in the high school library.

The truth was that they had raised money in a church. And one of the school board members had then kind of laundered the money through his father who purchased the textbooks and put them in the high school library.

And they had not been honest in their depositions. And the judge made a point of saying that he thought it was ironic that people who, you know, said they had religious motives would lie on the stand.

MARGARET WARNER: Now most of these original school board members were voted out last year, right?

LAURIE GOODSTEIN: Right, right, just last month. There was an election. And it was a very surprising result. Dover is majority Republican. The challengers to the school board that had voted for intelligent design were running on the Democratic line. And yet the Democrats won.

And these were people who had come in saying they opposed the "intelligent design" policy and would not have voted for it themselves. And the intelligent design proponents were voted out.

MARGARET WARNER: And so the assumption is that this new school board will not appeal this ruling. But have they actually said so? Has a decision been made?

LAURIE GOODSTEIN: The decision hasn't been made, but they have said before today, before seeing the ruling that they were inclined to abide by whatever the judge ruled.

And they, given that they are opposed to intelligent design, they really have no motive to appeal.

MARGARET WARNER: All right. Laurie Goodstein of the New York Times, thanks so much.

LAURIE GOODSTEIN: Thank you.

MARGARET WARNER: Now, reaction to the decision from two lawyers involved in the case. Richard Thompson, president and chief counsel at the Thomas More Law Center, which handled the case for the Dover area school district. And Eric Rothschild is a partner at Pepper Hamilton, LLP, which represented the plaintiffs, i.e., the parents who objected to what the school board had done. Welcome to you both.

Let's just start with your reaction to the ruling. Mr. Rothschild.

ERIC ROTHSCHILD: Thanks for having me on. This ruling was really a complete victory and a great vindication for these parents who stood up for their children in their community for their right to practice their own religious beliefs without intrusion by the school board, government actors, and both sides asked the judge to decide whether intelligent design is science or religion and creationism. And the judge clearly found it is a particular religious view; it is a form of creationism and it is not science. So we're elated with the ruling.

MARGARET WARNER: And, Mr. Thompson, I imagine you feel the opposite.

RICHARD THOMPSON: Well, yes. We think there's a lot of the parts of that decision that are very troubling. First of all, we have to keep in mind that this was a one- minute statement where the phrase "intelligent design" was mentioned twice.

MARGARET WARNER: Let me interrupt you. You're talking about what the teacher was required to tell the ninth grade biology students.

RICHARD THOMPSON: Right. Right. It was a one-minute statement that was read to the biology students just before they took up the section on evolution. And the phrase "intelligent design" was mentioned twice in that one-minute statement.

The policy of the school board went on to say that only evolution would be taught, that the students would be tested on evolution, that teachers were prohibited from either teaching intelligent design or creationism or presenting their views or religious views of the school board.

And yet through this incoherent establishment clause jurisprudence that we have now, the court found that this rose to the level of a violation of the establishment clause.

Our founding fathers would really be astounded that the establishment clause that they drafted would be used to knock down this very modest attempt by the school board to introduce the controversy that is surrounding the theory of intelligent design versus evolution.

MARGARET WARNER: Mr. Rothschild, based on your reading of the opinion, how did the judge get to where he arrived, just in a constitutional sense?

ERIC ROTHSCHILD: Well, this intelligent design proposition has historical precedence in the legal arena, and courts have previously found that teaching creationism, it is unconstitutional. One of the things --

MARGARET WARNER: You're talking about the Supreme Court, itself, has found that?

ERIC ROTHSCHILD: That's correct as well as other lower courts. What we presented to the judge -- and I think he found particularly compelling -- is that intelligent design really makes the same arguments as creationism or creation science.

In fact, the textbook "Of Pandas and People," which students are directed to in that statement was written as a creationist book and only changed the terms but none of the concepts after the Supreme Court ruled that creation science is unconstitutional.

So it's really exactly what courts have dealt with in the past. In a sense there's nothing new here except for that creationists have put a new name on the same proposition.

MARGARET WARNER: Explain how -

Just a minute, excuse me, Mr. Thompson. Let me get Mr. Rothschild to explain one thing.

Explain how you demonstrated to the court that this "Of Pandas and People" that the students were referred to was really a creationist document as you say?

ERIC ROTHSCHILD: We subpoenaed the publisher of "Of Pandas and People," an organization called the Foundation for Thought and Ethics.

And what we found and what the judge exclaimed his astonishment about in this opinion is that the drafts of "Pandas" used the word "creation" or "creationism" or "creation science" in the same places that the published version of "Pandas" uses the term "intelligent design."

And we also demonstrated to the judge that the timing of the change in terminology in the drafts coincided with that Supreme Court decision, the Edwards case, which found that creation science is unconstitutional.

MARGARET WARNER: Okay.

ERIC ROTHSCHILD: We also presented evidence to the judge that there's really no science behind this concept of "intelligent design."

MARGARET WARNER: Mr. Thompson, did that -- getting all those drafts of "Of Pandas and People" into the court record, does that make it a pretty uphill climb for you to then argue that, no, this is really a scientific textbook?

RICHARD THOMPSON: Well, first of all, we have to understand that the school board had no knowledge of the various drafts, the various manuscripts that had been prepared prior to the time that they saw the final version of "Of Pandas and People."

In fact, the plaintiffs' own witness said that it would be unfair to attribute to the school board various drafts of "Of Pandas and People," which the school board never even saw.

Secondly, this idea that "creationism" is an old concept that the courts have already decided on flies in the face of the testimony of two credible scientists who basically testified, subject to rigorous cross-examination, that what they were basing their theory of intelligent design was scientific data, empirical data, that they saw in their labs, the complex biological structure that they viewed they concluded could not have been caused by Darwin's theory of natural selection acting on random mutation; that these complex biological systems were there because they served a purpose. And that's the reason that they said it is an intelligent design.

Now that is different than creationism, which goes to the Bible or Genesis or some holy scripture and makes the conclusions based upon that holy scripture.

MARGARET WARNER: All right.

RICHARD THOMPSON: These were conclusions based upon scientific evaluation of the data that these credible scientists saw.

MARGARET WARNER: Okay. I would like to ask you a follow-up question on that point.

RICHARD THOMPSON: Sure.

MARGARET WARNER: In, again, his conclusion, the judge said he wasn't saying that intelligent design shouldn't be discussed, debated and studied in the schools; it just didn't belong in the science class, as if to suggest that it might belong in social studies class or comparative religions. What would be wrong with that?

RICHARD THOMPSON: Well, first of all it's a scientific theory and therefore it's proper to be in the science class. After all, all the Dover area school board did was make students aware that there is a controversy in this area and that there is an alternative theory, and that's the theory of intelligent design.

This judge should not place himself in the position of determining which scientific theory is valid and which is not. A thousand decisions is not going to change the law of gravity, nor is a thousand judicial decisions going to determine whether intelligent design is a valid theory. That should be left up to the scientists. It should be left up to the debate that the scientific community was involved with.

MARGARET WARNER: All right. Let me get Mr. Rothschild back in here. Do you want to respond to that, sir?

ERIC ROTHSCHILD: Sure. The scientists that Mr. Thompson is referring to don't study intelligent design in the labs; they don't test intelligent design; they don't write articles for peer review scientific journals about intelligent design, and that's because intelligent design is at its core a religious proposition that there was a supernatural creator who caused biological life.

Their lead expert, Dr. Behe, testified that intelligent design is more believable the more you believe in God. And I don't know of any other scientific proposition that fits that description.

There's really - there's no controversy in the scientific community. There's a controversy that has been created in the public arena by the intelligent design movement itself. But science isn't debating evolution versus intelligent design. That's just --

MARGARET WARNER: Hold on. Just let me follow up with Mr. Rothschild. Then I'll get back to you, Mr. Thompson.

Let's pitch forward here now and talk about the significance of this ruling. The fact that, Mr. Rothschild, this is just a district -- it's a federal court in the central district of Pennsylvania; we've already heard that the school board is probably not going to appeal so it's not going to go up to a higher court. How much impact does it have?

ERIC ROTHSCHILD: You're right that it's not binding precedent on other jurisdictions such as Kansas or Ohio, where these controversies are already flaring up. But it's an extremely persuasive precedent.

The judge took pains to say, you know, both sides presented the case for and against intelligent design. A lot of resources were expended including by the court. And it would be a waste to play over and over again this controversy when he has examined it so closely.

And I would hope that other school districts, seeing what Dover has gone through and the results of this opinion, would think carefully about whether they really want to subject their schools and their communities to this when, you know, the theory of evolution is so soundly accepted and corroborated and intelligent design really has no science behind it.

MARGARET WARNER: All right. And, Mr. Thompson, where does - your -- in fact, the judge even says you helped instigate this. I don't know if that's true or not, but where do you go from here? Where is the intelligent design movement go from here?

RICHARD THOMPSON: That comment made by the judge shows where he's at because there is no evidence that we instigated it. In fact, we did not instigate it.

What Mr. Rothschild is saying about intelligent design was said about the "big bang" theory back in the 1920s.

MARGARET WARNER: But where do you go from here legally?

RICHARD THOMPSON: As Mr. Rothschild indicated, there is no precedential value to what the judge said.

What I would suggest is if school boards are interested in intelligent design, they should read the transcript of the expert testimony, and from there go on to determine whether intelligent design really is a scientific theory or not.

And I think they will find that we had credible scientists like Michael Behe and Scott Minnich, who talked about the bacterial flagellum, the blood clotting cascade and other biological systems that could not have been explained by Darwin's theory of evolution and that a valid theory is intelligent design.

MARGARET WARNER: Sir, very briefly, is there another case we should be looking at?

RICHARD THOMPSON: There are several cases out there that are percolating. There are different fact scenarios. We have some teachers who want to teach intelligent design regardless of what the school board says or does. In fact, this goes back to 1925 --

MARGARET WARNER: And, sir, I'm sorry. We don't have time to go back to 1925. I am out of time. And I thank you both very much.

RICHARD THOMPSON: My pleasure.

ERIC ROTHSCHILD: Thank you.

GWEN IFILL: Still to come on NewsHour tonight, what is the National Security Agency? And who is Bolivia's new president?

UPDATE - SPY STORY

GWEN IFILL: Now, a look behind President Bush's decision to authorize a little-known spy agency to eavesdrop on Americans.

The National Security Agency, or NSA, is normally tasked with overseas surveillance. It's bigger than the F.B.I., bigger than the CIA.

But few Americans know of its existence on a low-profile campus in suburban Maryland. Secrecy is the very essence of its mission. But what should Americans know about an agency with such sweeping powers?

For that, we turn to two intelligence experts: John McLaughlin, the former acting director of the Central Intelligence Agency, had a three-decade career at the CIA -- he is now a senior fellow at Johns Hopkins University. And James Bamford, the author of two books about the NSA, "The Puzzle Palace" and the "Body of Secrets."

James Bamford, tell us first about the NSA. Most people don't know it exists. They don't know what it does. What can you tell us about it?

JAMES BAMFORD: Well, actually that was the old joke at NSA: that the letters NSA stood for "no such agency" or "never say anything."

It's a huge agency, very, very large, about three times the size of the CIA. And the CIA is responsible largely for human spies, putting agents in different places and gathering information.

The NSA's job is electronic eavesdropping, spying electronically, bugging telephones, listening to cell phones, reading emails. It's the big ear. It's been called America's big ear for many years. And it's also a very dangerous agency if the agency is turned inward on the American public.

Sen. Frank Church in the mid '70s studied NSA and became very worried about it. He said the capability of NSA at any time, if it's turned around on the American people, no American would have any privacy left. There would be no place to hide. So it's an agency that has a lot of power and it's supposed to be directed externally at our adversaries in other countries around the world.

GWEN IFILL: John McLaughlin, in the years that or the decades you were at the CIA, how critical was the NSA work to your own?

JOHN McLAUGHLIN: Well, absolutely critical. The NSA has played an enormously important role in capturing terrorists around the world. And the important thing to realize is that intelligent is a puzzle-solving operation. The material that NSA collects from electronic intelligence, technical work, has to be woven together with human intelligence, pictures from space, what we learn in the open source world in order to create a picture that gives us a view of the battlefield or a view of the terrorist landscape.

GWEN IFILL: And a few nuts and bolts questions: Are we talking about wire taps or satellites? How does the NSA -- obviously you can't talk about everything that they do. But what kinds of efforts do they do? What kinds of tools do they use to do their job?

JOHN McLAUGHLIN: Well, I think I do have to be a little careful there. In fact, one of my concerns about this story is that so much has come out now it will damage our intelligence collection capability.

I would just say that the NSA has had to keep up with what every American should understand just from their daily life has been an absolute stunning revolution in technical -- in technical - technology and in communications technology, in particular.

So it's been a very challenging period for NSA as we've gone from sending cables and from the old world of technology to a world where we have universal hand-held communication and much more sophisticated ways of encrypting communication that passes from one person to another.

GWEN IFILL: Mr. Bamford, what is normally the distinction between domestic surveillance-- who does that -- and international surveillance -- And how does this latest case blur that line?

JAMES BAMFORD: Well, traditionally the F.B.I. has been responsible for domestic eavesdropping. And they do what basically can be referred to as retail eavesdropping. They'll go to a person's home, a person's office, a central switching office for the telephone company and attach some wires or some alligator cables, whatever, and eavesdrop on certain individuals.

The NSA, on the other hand, when it's eavesdropping on international communications, focuses on entire streams of communications such as communications coming down from communication satellites that can carry millions of phone calls.

And they'll intercept it in large dishes for example, or they'll intercept it by satellites and then filter it through very fast, very powerful computers that are loaded with people's names, people's telephone numbers, words, phrases, whatever they're looking for. And they'll gather tremendous amounts of telephone calls, emails and so forth.

One listening post, for example, in central England, Menwith Hill station, according to one of the former directors of NSA, collects about two million pieces of communications an hour. So it's a tremendously powerful agency for collecting and eavesdropping on information.

GWEN IFILL: Mr. McLaughlin, do you have any concerns at all about the sense that a line may have been approached if not crossed in this latest case, that is, that an agency that should be focusing on spying on our enemies theoretically may be spying on us?

JOHN McLAUGHLIN: Well, we're in a new era where it's difficult to use all of the terms that we've used in the past. While it's important to keep these distinctions in mind -- and it's certainly important to be mindful of our civil liberties, of course -- essentially 9/11 began to blur the line between foreign and domestic intelligence.

We were attacked in our own country. We weren't attacked somewhere else. And we were attacked by people who are in our own country but connected to foreign terrorists.

So the challenge in intelligence today is to bridge that line that once was so bright in our national security. Today we have to be able to generate intelligence in our own country that we can pass to the cop on the beat, to a CIA officer in some remote place and vice versa. That information has to flow back and forth.

GWEN IFILL: What is missing in the Foreign Intelligence Surveillance Act, which created that FISA court which creates - which provides warrants when needed? What is missing in that act that the president needed in this case?

JOHN McLAUGHLIN: Well, let me say first that the FISA procedures are excellent and they're frequently used and very effective. They were designed for a different era and a different type of target. In 1978 when the act was created and today, that kind of procedure is for longstanding, stable targets where you have coverage over a long period of time.

What's happened in the communications revolution, though, is that people today jump from one phone number to another, one telephone to another. When you capture a terrorist overseas if you're lucky enough to capture all of the electronic media with that terrorist, you may have terabytes as data as much data as we have in a small public library.

You may have two or three hundred phone numbers related to people in the United States or email addresses. If you were to get FISA's on all of those people, two or three hundred, it would take a tremendous amount of time; whereas, if you use some of the procedures that have been adopted under this particular program, you can quickly scour through that and figure out that maybe 90 percent of it, 99 percent of it is innocent or harmless or meaningless but there are two or three or four that are seriously connected to terrorists and you want to focus in on them. You might get FISA authority for those and dig deep on them.

GWEN IFILL: Let me ask Mr. Bamford about that. Do you agree in some ways in this new era, the post 9/11 era, that the FISA process is in inadequate?

JAMES BAMFORD: I disagree. FISA has been adequate all these years. If somebody needs a FISA warrant in a very quick period of time, it's provided for that. The court allows 48 hours, a 72-hour grace period so you can begin eavesdropping immediately.

Look, the FISA Act was enacted primarily because of abuses by the -- by President Nixon using the NSA domestically, spying domestically, using the NSA. And it went completely out of control because there was no firework -- I'm sorry -- no fire wall between the NSA doing tremendous amounts of internal spying on U.S. Citizens and the American citizens who deserve some privacy.

GWEN IFILL: And let me just follow up on that for a moment. One of the things that the president, the White House has said, is that they are concerned -- they believe they have the authority to do this because Congress enacted a war powers resolution which allowed him to use all necessary and appropriate force. Those are the terms that they use. Can you think of a case where that's happened before?

JAMES BAMFORD: Well, actually, you know, if you read the FISA Act it actually takes that into consideration. It says in a time of war, you can have an extra 15 days to present the information to the FISA court for a warrant. But it's very clear the whole idea of the FISA Act was to keep presidential power from getting out of control and using an agency like NSA to spy on American citizens.

One of the things that was said when they created the law was that this bill specifically states that the protections in the bill are the exclusive means by which the government can get permission to eavesdrop. And it said that the --it recognizes no inherent power of the president to conduct electronic surveillance. That's what the law says and the law provides the penalty of five years in jail if you go around the law, which was done.

Now if they have a problem with that law, the place to solve that problem is by creating new laws or fixing this law in Congress. And I saw no effort by the administration to try to do that.

JOHN McLAUGHLIN: Gwen, I just want to add there that Jim and I aren't going to be able to settle these complex legal issues here today. People are making arguments on both sides of it. I think in the end the president's action will be shown to be legal. But I say that as a non-lawyer.

I want to point out though Jim used the word "abuse." There's not been a single shred of evidence so far and I would be surprised if one ever appears that this program has been the vehicle for any abuse of any civilian or any citizens' rights.

It's not a drift net that's hanging over our city scooping up all kinds of private conversation. It's a very precise targeted instrument.

GWEN IFILL: Well -

JOHN McLAUGHLIN: And also let me just add one other point here. Even though there are emergency procedures where you can get a warrant and then have 72 hours to justify it, it's also true that in that72 hours in this modern communication era, it's highly likely that the terrorist you're following is on a different phone number, a different cell phone and you'd be getting warrants one after another, which let me come back to it and say that's not to say that FISA is not an important instrument. It's been very effective for a certain type of terrorist target. But we need more agility and more speed and I think that's what the president was searching for here.

GWEN IFILL: Well, let me ask you about this. Since we're talking about secrets and we're talking about the realm of secrecy. How concerned are you or are you concerned at all about the leak, which brought all of it to light?

JOHN McLAUGHLIN: Oh, absolutely. This is to me as an intelligence professional and a practitioner and someone who is involved in counterterrorism, this leak will damage us greatly.

This is the kind of program that filled in a gap in our coverage. People say: Well, didn't the terrorists know we were listening to them? Don't we know we intercept their conversations? Well we don't know that.

Well, we don't think that they know that we are as good as we have been. They now know that. They know a lot more today than they did before this leak.

This is the kind of program that allowed us to detect people in our own country who were affiliated with al-Qaida, intending to do harm, link them to plots overseas and detect people come to go this country with the intention of doing harm. So I think it will be harmful.

GWEN IFILL: John McLaughlin and James Bamford, I'm sorry, we're out of time. Thank you both very much.

FOCUS - POLITICAL SHIFT

GWEN IFILL: Another South American nation picks a populist president. Ray Suarez has that story.

RAY SUAREZ: Socialist Evo Morales is poised to become Bolivia's first Indian president after winning a clear majority in Sunday's election.

EVO MORALES (Translated): I want to reiterate our original indigenous movement does not exclude. It includes. That is our nature. Our government will end discrimination, xenophobia and the hate we have endured.

RAY SUAREZ: And it is from Bolivia's indigenous population, more than 60 percent of the country's nine million people that Morales has gained his strongest support.

FACUNDA JAVIER (Translated): We have won. And now we're going to change this country, all the majority together. The people are finally in power.

RAY SUAREZ: Land-locked Bolivia is among the poorest countries in Latin America. Roughly two thirds of Bolivians live on less than $2 a day.

Bolivia has also suffered political instability. Popular uprisings have toppled two presidents in just three years.

Forty-sixty-year-old Morales is a flamboyant speaker, often rallying anti-government demonstrators. And one of his key promises -- to stop the U.S.-backed campaign to eradicate coca production -- pits him against the United States.

The local Indians chew coca leaves as a mild stimulant but Bolivia has also become the world's third largest cocaine producer.

The U.S. is spending about $150 million a year to help the current government combat cocaine production and trafficking.

EVO MORALES (Translated): A political tool for the sovereignty of the people -- legally called the movement toward socialism -- was born to defend this coca leaf, to defend our land and territory.

RAY SUAREZ: The State Department today had this cautious response to Morales's victory.

SEAN McCORMACK: We have congratulated him on his apparent victory and we've congratulated the Bolivian people on the kind of election process that they have run, and we hope with this election that they can begin to move beyond what has been a difficult period in Bolivia's political history.

The kind of relationship and the quality of the relationship between the United States and Bolivia will depend on the -- what kind of policies they pursue including how they govern. Do they govern democratically? And do they have a respect for democratic institutions?

RAY SUAREZ: Morales has called himself a nightmare for the U.S., asserting he will be an ally of both Cuba's Fidel Castro and Venezuela's Hugo Chavez.

At regional summits and in meetings with his fellow South American presidents, Chavez has developed into the most vocal opponent of U.S. economic and trade policies in the region.

If Morales's electoral victory is ratified by parliament, he will join a growing group of populist and leftist presidents across South America including in Argentina, Brazil and Uruguay. That number could increase as voters in nine other Latin American countries head to the polls in 2006.

RAY SUAREZ: For two perspectives on Bolivia's incoming president, and the rise of populist leaders in Latin America, we turn to Roger Noriega; he served in the Bush administration as an ambassador to the Organization of American States and as assistant secretary of state for western hemisphere affairs -- he's now at the American Enterprise Institute; and Mark Weisbrot, co-director of the Center for Economic and Policy Research, an organization that promotes debate on economic and social issues in the U.S. and abroad.

And, Mark Weisbrot, why did Bolivians throw out more conventional politicians and choose as their president and overwhelmingly, a man who is the head of the coca farmers and helped engineer the demonstrations that have brought other governments topple down?

MARK WEISBROT: Well I think you're seeing this across South America as you just showed on the map. What you have here is primarily the result of a 25-year economic failure. People here don't really understand or appreciate this. But you've had very little growth in all of Latin America over the last 25 years.

The total growth of income per person, which is the most basic measure that economists have to measure economic progress, has been only 10 percent.

Now if you look at the prior 20 years, 1960 to 1980, it grew by 82 percent. So you've had a 25-year period now; a whole generation-and-a-half of people in Latin America have really lost out on any chance to improve their living stand arteriosclerosis.

And this is really the primary issue that's driving these elections that we've seen in Argentina, in Brazil, in Venezuela, in Uruguay, in Ecuador, and now in Bolivia.

And, of course, also the rhetoric that he has about, you know, what he says he's against imperialism, against U.S. imperialism, and he talks about that a lot. And of course in Argentina Kirschner talks a lot about the IMF.

Well, Bolivia is an example of that. They've been under IMF agreements almost continuously for nearly 20 years. And their income -- and they've done what they were told to do. They privatized even the Social Security system there. And their income today per person is less than it was in 1980.

So this is an economic failure that Latin Americans tied to the United States. And even more than the issues around drugs or the Iraq war or any other issues where they have disagreements with the current administration, it's this difference over economic policy that's driving the, I think, the conflict here.

RAY SUAREZ: Ambassador, is that what you see, a verdict on economic failure?

ROGER NORIEGA: Well I think anyone that knows anything about Latin America would hesitate to extrapolate using Bolivia as a model. The roots of the instability and ethnic polarity that exists in Bolivia go back 500 years and have very little to do with economic policy of the last three decades.

In point of fact though, economic progress has come to people of Bolivia in terms of the reduction in literacy and a decrease in infant mortality, Gross Domestic Product growing.

But we really should be focusing on the future. I think that Morales has achieved an important victory for people who have been on the margins of Bolivian society for 500 years. 60 percent indigenous majority have a person that looks like them running that country.

And the question for him really is how he's going to take advantage of this significant mandate to extend economic opportunity and political power to his people. We hope that he does that through respect for democratic institutions, which, after all, delivered an important victory for him and for his followers.

RAY SUAREZ: Well, what are the major points in his platform? What is it that he wants to change about the way Bolivia is running to give hope to the indigenous that he was running on behalf of?

ROGER NORIEGA: Well, he talks an awful lot about a statist approach to the economic development of Bolivia. The problem with that is that those sort of statist solutions have a record of failure. They have an opportunity --Bolivia sits today on the second largest reserve of natural gas in the hemisphere, second only to Venezuela.

But to -- and that gas has been there for a thousand years and it will be there for a thousand more if you don't have capital to extract it.

I think what we hope that he develops is a program that uses -- that guarantees property rights, essential property rights, creates a transparent regime to attract international investment and then put those resources at the disposal of the Bolivian people, and consciously extend those resources to help attack the poverty that is really a shame in that country.

RAY SUAREZ: Well, Mark Weisbrot, the previous presidential administrations came to grief just over what was going to happen with that natural gas and how Bolivia, whether Bolivia, was going to sell it. What is Morales going to do that's different?

MARK WEISBROT: Well, I think he's going to get a better deal from the multinational companies. He's threatened even to nationalize it, although I don't think that he necessarily will do that. But he's going to drive a harder bargain and make sure that Bolivians get something from their resources. And he's in a very good position to do so.

Even though the country is very highly indebted, you have really a very different situation in Latin America today than you had even five or six years ago. So, for example, in Argentina's case, they're getting right now a billion dollar loan from Venezuela. They also attract investment from China so they don't necessarily have to do what the United States tells them anymore. And that's part of this kind of regionalist, nationalist rebellion that you're seeing in all of these countries.

And the fact that Argentina was able to even after their economic collapse in 2001, they got -- they didn't get a dollar from anywhere, you know, from outside. And they recovered and they're growing, they've been growing 9 percent a year for three years now.

So I think Bolivia is going to have a chance. They're just going to have to break with the economic policies that Evo says he wants to break with. And I don't know what Roger considers to be a success but when your income per person is lower than it was 25 years ago, most economists would call that a failure, a terrible failure.

RAY SUAREZ: One of the first things Evo Morales said after his victory was assured was that he's going to pull Bolivia out of U.S.-backed coca eradication programs. Briefly, what does that mean for Bolivia?

ROGER NORIEGA: Well, it could mean turning the country over to not cocaleros -- people who grow coca for their own consumption -- which is sort of an ancient part of the Bolivian culture but turning it over to those who want to use Bolivia has a bread basket for cocaine and ship it incidentally not so much to the United States as they do to Argentina and to Brazil and to Europe.

And what that risks is undermining the democratic institutions where if countries that have failed to prosecute an aggressive strategy to apply the rule of law against cocaine smugglers and criminal syndicates that move cocaine and heroin out of South America see their institutions attacked and the very institutions that he depended on to get elected and that he hopes now to use to govern in a responsible way would be undermined by the lawlessness.

So by all means it is an important part -- coca is an important part of the Bolivian culture. Nothing that we do or want to do for that matter will change that. But what we hope he does not do is turn the country -- turn a blind eye to criminality because that's going to hurt the Bolivian people.

RAY SUAREZ: Is that a risk given that Evo Morales's political base is among the coca growers?

MARK WEISBROT: It's coca growers but not drug traffickers. And he said very clearly we're not going to have cocaine; we're not going to have drug trafficking. He just wants to legalize the coca leaf. And I think a lot of this --

RAY SUAREZ: But is there a way to do that legitimately?

MARK WEISBROT: I think so. But, more importantly, the issue for Latin Americans, you know, here our whole Latin American policy for many years now has been drugs and terrorism. But from the Latin American point of view, it's growth and development. That's what they need.

They need to create jobs. They need to raise people's incomes and living standards. And they used to do that. They haven't done that, I said, for the last 25 years. And that's what this government's priorities are going to be.

He's going to try and use immediately the natural resources of the country to benefit the poor as they did, for example, as they have done in Venezuela in the last few years.

RAY SUAREZ: Mark Weisbrot, Ambassador Noriega, thank you both.

MARK WEISBROT: Thank you.

ROGER NORIEGA: Thank you.

RECAP

GWEN IFILL: Again, the other major developments of the day: A federal judge in Pennsylvania ruled against teaching intelligent design in public schools. He said it has no place in a science curriculum. A state judge in New York fined New York City's Transit Union $1 million a day after workers went on strike. And a number of Democrats insisted they never approved secret domestic surveillance without warrants.

And again, to our honor roll of American service personnel killed in Iraq. We add them as their deaths are made official and photographs become available. Here, in silence, are six more.

We'll see you online, and again here tomorrow evening. I'm Gwen Ifill. Thank you, and good night.