The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight: A summary of the news; a look at President Bush's decision to oppose the Michigan affirmative action program; a Jan Crawford Greenburg rundown on today's Supreme Court argument about the federal Family Leave Act; some perspective on the growing argument over the value of the U.N. weapons inspections in Iraq; and a Clarence Page essay about Elvis and Eminem.

NEWS SUMMARY

JIM LEHRER: The Bush administration will join a challenge to affirmative action at the University of Michigan. President Bush announced his decision this afternoon. He said the Justice Department will file a brief against the school's admissions policy, in a case now before the U.S. Supreme Court. That policy gives preference to minority applicants, but the president said it's unconstitutional.

PRESIDENT GEORGE W. BUSH: I strongly support diversity of all kinds -- including racial diversity in higher education. But the method used by the University of Michigan to achieve this important goal is fundamentally flawed. At their core the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students based solely on their race.

JIM LEHRER: Earlier in the day, a number of Democrats condemned the president's stance. The chairman of the Congressional Black Caucus said Mr. Bush was attacking a system that has helped thousands overcome racial barriers.

REP. ELIJAH CUMMINGS: Integration and fair inclusion now do constitute a compelling state, President Bush, they are in the interests all Americans, not simply the interests of those of us who are Americans of color. How can we deny our great public universities the modest means that remain to achieve that great and compelling interest?

JIM LEHRER: We'll have more on this story in a moment. North Korea refused today to drop its nuclear weapons program in return for possible U.S. aid. President Bush had said Tuesday he would consider offering energy and agricultural assistance once the nuclear standoff ends. But a North Korean foreign ministry spokesman answered today. He said, "The U.S. loudmouthed supply of energy and food aid are like a pie in the sky." In Washington, a White House spokesman said the administration did not consider that an official response. Also today, North and South Korea agreed to hold cabinet- level talks later this month. U.S. military leaders said today they are not yet committed to war against Iraq. At the Pentagon, Gen. Richard Myers, chairman of the Joint Chiefs of Staff, said there is not a point of no return. But Defense Secretary Rumsfeld said the military buildup has to go for just in case.

DONALD RUMSFELD: We're doing some mobilizing and we're doing some deploying. We also recognize that the timing of the decision making is not in our hands. So what we have to do is to try to do what we're doing in a way that gives the president and the world options to use force if in fact that becomes necessary.

JIM LEHRER: The U.S. did formally ask the NATO allies today for limited aid in the event of war. That could include access to air space, ports and refueling sites. In Iraq today, U.N. weapons inspectors searched a major presidential palace in Baghdad. The complex houses Saddam Hussein's main office. We'll have more on this story later in the program. A judge in Virginia ruled today a teen-age suspect can be tried as an adult in the Washington area sniper case. The ruling makes 17-year-old John Lee Malvo subject to the death penalty. Malvo and 42-year-old John Mohammed are accused of killing ten people and wounding three others in a series of shootings last fall. The U.S. Supreme Court today upheld a 1998 law extending copyrights for another 20 years. The ruling was seven to two. Internet publishers and others had wanted access to older songs, books and films, without having to pay royalties. Walt Disney and other large media companies argued for the copyright extension. The court also heard cases today involving the federal Family Leave Act and immigration law. We'll have more on those arguments later in the program. In economic news, the Labor Department reported wholesale prices held steady in December. And on Wall Street, the Dow Jones Industrial Average lost 119 points to close at 8723. The NASDAQ fell 22 points to close below 1439. That's it for the news summary tonight. Now it's on to affirmative action, two other Supreme Court arguments, more time for the inspectors, and a Clarence Page essay.

FOCUS RACE & ADMISSIONS

JIM LEHRER: Ray Suarez has our coverage of the White House position on the Michigan affirmation action case before the Supreme Court.

RAY SUAREZ: The lawsuits against the University of Michigan are the biggest affirmative action cases to go before the Supreme Court in decades. The justices agreed last month to hear the two cases. One involves Barbara Grutter, who applied to the university's law school seven years ago. The former consultant, who was 43 at the time, was rejected despite what she considered strong qualifications. Grutter says she didn't get in because she's white.

BARBARA GRUTTER (August 2000): I think that I was discriminated against in the admission process, very specifically, because I believe they have different criteria based on race.

RAY SUAREZ: Law school administrators say they consider race as one of several factors for admission. Jeffrey Lehman is the dean.

JEFFREY LEHMAN: It's not a color-blind society. Opportunity is not distributed with regard to race. And therefore, in order to have a racially integrated student body, it is necessary to pay attention to race in the admissions process.

RAY SUAREZ: But in 1997 Grutter challenged that policy and sued Michigan. Four years later, a federal judge ruled that using race as a factor in making admissions decisions was unconstitutional. That decision was later overruled on appeal. The second case involves Jennifer Gratz. She applied to the university's undergraduate campus at Ann Arbor in '95, and was wait- listed. She spoke to the NewsHour in 1997.

JENNIFER GRATZ (1997): It made me question everything I've ever wanted to do. It made me question my talents. I was embarrassed and I was upset.

RAY SUAREZ: Gratz, who later went to Michigan's Dearborn campus, became a plaintiff in a class- action lawsuit against the university. She noted that Michigan-Ann Arbor accepted African Americans and Latinos with similar credentials.

JENNIFER GRATZ: I believe I was racially discriminated against, and that's wrong.

RAY SUAREZ: But Gratz lost. A different federal judge sided with Michigan, citing the "educational benefits" of a racially diverse student body. At the White House late this afternoon, President Bush explained that his administration's brief would argue that race-based admissions policies are unconstitutional.

PRESIDENT GEORGE W. BUSH: Our Constitution makes it clear that people of all races must be treated equally under the law. Yet we know that our society has not fully achieved that ideal. Racial prejudice is a reality in America. It hurts many of our citizens. As a nation, as a government, and as individuals, we must be vigilant in responding to prejudice wherever we find it. Yet as we work to address the wrong of racial prejudice, we must not use means that create another wrong, and thus perpetuate our divisions. America is a diverse country racially, economically, and ethnically. And our institutions of higher education should reflect our diversity. A college education should teach respect and understanding and goodwill. And these values are strengthened when students live and learn with people from many backgrounds. Yet quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair, and impossible to square with the Constitution.

RAY SUAREZ: The Supreme Court will hear oral arguments on the Michigan cases in March, and is expected to rule by July.

RAY SUAREZ: We pick up the story now with Terrence Pell, president of the Center for Individual Rights, which is representing the white students in these cases; Walter Allen, a professor of sociology at the University of California, Los Angeles he was an expert witness on behalf of the minority student interveners when the cases were in the lower courts; Christopher Edley, professor at Harvard Law School as special counsel to President Clinton, he led a White House review of affirmative action programs; and Carol Swain, a professor of political science and law at Vanderbilt University.

Let me start by getting all your reactions to the president's statement and also an idea of where this now places the White House in the national debate.

Terrence Pell?

TERRENCE PELL: Well, we are very pleased, obviously, with the president's announcement today. He correctly recognize that the type of race preferences used by Michigan are not only unconstitutional, but they're unnecessary, and it's time for our country to move beyond that sort of heavy consideration of race in college admissions.

RAY SUAREZ: Walter Allen?

WALTER ALLEN: I view this as a very sad day. I think the president took a decision that was very misguided and will create movement back toward a resegregation of this society, and I don't agree; the University of Michigan's system, quite the contrary, did not operate as a quota system.

RAY SUAREZ: Carol Swain.

CAROL SWAIN: I believe the president made the right decision today, and I think that it has been greatly exaggerated the impact in the end, and I think that again that we need a fair society that racial preferences create a lot of divisiveness and that there are other ways and better ways of getting diversity.

RAY SUAREZ: And finally Christopher Edley.

CHRISTOPHER EDLEY: Well, I don't think divisiveness is really the issue. We would still have segregated lunch counters if we were overly concerned with progress that might be divisive. It's not entirely clear what the president has decided. We're going to have to wait to read the brief. He seems to say he's in favor of diversity, suggesting he may be conceding that diversity can at least in some circumstances be a compelling interest. The question is whether he's only in favor of diversity if it happens by accident. I was very disappointed that he was waving the bloody flag of quotas when that's really not the issue in this case. There's universal agreement that quotas are and should be illegal. And characterizing the Michigan practices as quotas is frankly misleading, and will confuse the debate when we ought to be clarifying it.

RAY SUAREZ: Terrence Pell, how do you respond?

TERRENCE PELL: I disagree with that. I think one of the judges in the Michigan cases called the systems the functional equivalent of a quota, and what he meant by that is that Michigan decides in advance what percentage of the class it wants to be consist of minority students, and it reverse engineers every aspect of the admissions process to get that result. It's not a quota in the sense of specifying a precise number. It is certainly a quota in the sense of reverse engineering the admission system to get a certain racial outcome, and that's unconstitutional.

RAY SUAREZ: Professor Swain, what's the significance of the White House moving ahead to file this brief in this case? The arguments haven't been heard, this isn't an executive order, it's merely the White House joining other parties in saying this is what we think.

CAROL SWAIN: Well, first of all, I want to say that I don't believe that this should be the litmus test as to whether or not the Bush administration is serious about reaching out to minorities. I think there are other things that we can look towards to assess that. I think that the importance of it is that it sends a signal to all Americans that the president first of all in his words, he recognizes that discrimination is still a problem in America and that we still have issues that need to be addressed. But he's not going to privilege race and allow some students to be benefited regardless of socio-economic conditions just by the fact that they were born with a certain skin color.

RAY SUAREZ: Professor Allen, was it important to hear from the administration as an amicus in this case?

WALTER ALLEN: It was, the president's intervention in this case is obviously of extreme and major importance. It's just very unfortunate that he came down on the wrong side of history. The fact of the matter is that the affirmative action programs have changed the face of this nation for the better. We're better for it, we're a stronger nation; we're a better nation. And what I worry about as a result of this decision coming from the White House is sending the wrong message. I think this is a very important message and I think it is very problematic and it may rise to the standard of a litmus test. It certainly does for many people in the black community. This just sends the wrong message to us.

RAY SUAREZ: Earlier this evening at the White House, a spokesman promised that the briefing coming tomorrow would be "narrowly tailored" and concentrate on the equal protection clause of the constitution. What role does a brief from the White House play in this case?

TERRENCE PELL: Well, it depends what the brief says. If the brief makes a clear argument and backs it up with persuasive rationale, then I think it will carry weight with the court. If the brief is constructed as a political response and in some sense represents a compromise, then it will have less weight with the court. The only way we can assess that of course is to read the brief, which we'll have a chance to do tomorrow.

RAY SUAREZ: Professor Edley?

CHRISTOPHER EDLEY: I agree with that, I think it's important from a doctrinal point of view if in fact the administration concedes that diversity is a compelling interest and focuses only on the mechanics of what Michigan has done. That's very important; it makes it much less likely that the court itself will reach out to give a sweeping holding that would wipe out race attentive decision making across the board, and we'll be back looking to what extent the mechanics have to be mended rather than ended. I think that it's important to emphasize here that Michigan reverse engineers in the sense that Terry took it only in the very limited sense that they have they have a view about the need for a critical mass of minorities in order to get the educational benefits that come from diversity, but they don't have to have tokenism, but they don't want to have rigid numerical straightjackets either.

RAY SUAREZ: Let's go back to what you said about the president's endorsement of diversity as a value, and arguing with the mechanics. Why is that important?

CHRISTOPHER EDLEY: It's important because if he says as the court has said in some earlier decisions that diversity may under some circumstances be a compelling interest and would justify paying limited attention to race, it's just a question of doing it carefully. If he says that, then it's a question of saying, well, where did Michigan cross the line? Should they be less mechanical in the way in which they use points? Should they give more attention to outreach and less attention to what happens in the admissions committee, tinkering of that sort -- there would still be room, in other words, to design programs in universities, in police departments, in the military that would achieve the necessary diversity.

RAY SUAREZ: Professor Swain, from what you've heard from the president in his earlier statement and his endorsement of diversity as a goal, do you think that the emphasis really now goes to how Michigan goes about achieving diversity, rather than using race as a factor at all?

CAROL SWAIN: It seems to me that the endorsement of diversity the way the president presented it would allow for a number of different programs including something like the Texas plan, where admission is almost guaranteed to students that are in the top ten percent of their classes. And again I think the problem with the University of Michigan admissions plan was that it did not make distinctions between minorities that were affluent and those that were from lower socio-economic backgrounds, and that what we need in place today in America is a program that takes into consideration the needs of people from disadvantaged backgrounds and working class backgrounds.

RAY SUAREZ: Professor Allen, if the White House view is withheld, is upheld, will race be a factor in admissions at all, or is this just a question of how admissions committees should be conscious of race?

WALTER ALLEN: I can say with certainty that race will continue to be a factor in the lives of people of color in this society. And it has operated in such a fashion and such a systematic fashion that it has disadvantaged at all stages along the way from the earliest years of schooling to college admissions. Now, to the extent that race is taken as a factor, it obviously would be the case that race should be considered, I'd suggest. I'm leery of and not at all persuaded that the various alternatives to express an explicit consideration of race will actually yield a result, I mean, immediately after departure from the use of race as a selection factor in the University of California system we saw these precipitous and dramatic declines in the presence of black and Latino students, 50 percent, 40 percent. It's just cynical as far as I'm concerned to pretend that race is not a factor or to simply talk about a valuing of diversity without building in mechanisms that will make, that will compensate for the mechanisms that operate in this society presently to disadvantage people of color.

RAY SUAREZ: Well, Terrence Pell, you welcomed the White House's statement, but is there any daylight between what you heard today and what your own institution is going for by helping these many plaintiffs?

TERRENCE PELL: I think Professor Edley is right. The question is going to be how hard the Bush administration criticizes the diversity rationale, the idea that engineering a racial mix of students is sometimes a compelling state interest. I heard the president today, I heard him reject the idea of engineering racial outcomes across the board. And I heard him embracing a race neutral approach, like the Texas ten percent plan. So, and I think, you know, it's clear where schools have used a race neutral approach they have achieved every kind of diversity including racial diversity. Although there was a drop in minority enrollment following Proposition 209, it quickly rebounded, and today in Texas and California and Florida and Washington, every single institution of higher education has a minority enrollment equal or exceeding ten percent, which is the critical mass that Michigan says it needs to get these educational benefits. The fact is these states are achieving that critical mass without using race preferences, and I think that was the president's point today. That we can move beyond race preferences, we can have a diverse student body without judging people differently based on their skin color.

RAY SUAREZ: I'm sorry, Professor Swain, I cut you off, I heard you trying to get in there.

CAROL SWAIN: Yes. I think the most likely impact first of all, I reject the proposition that you're going to get lily white institutions if you move away from the present system, because there are minorities that meet the standards at the ivy league schools -- true, they're not in as high percentage as we would like, but what would most likely end up with students that would normally get into Princeton or Harvard or places like that will go to Duke, they'll go to Vanderbilt, they'll go to good institutions, and perhaps they will be more successful and feel better about themselves because their SAT scores and credentials will be comparable to the white students.

CHRISTOPHER EDLEY: Let me say a couple things. First, there will be a tidal wave of amicus briefs filed by organizations and by higher education associations around the country that will come in strongly in a position very different from the administration's, they will argue vociferously that there is a compelling interest in racial diversity, that it cannot happen by accident, that race neutral alternatives in some circumstances will be effective, but in many circumstances will not be effective. And they will be present social science evidence demonstrating that there are educational and other benefits to the institution and to all the students from having that kind of diversity. So I just want to say, you're right, the administration -- this is one amicus briefs, there will be many, many more amicus briefs producing argument and social science evidence on these propositions. We can't, if there are race neutral ways to achieve this racial diversity, then you shouldn't pay attention to race when you're making the decisions, that's crystal clear. The problem is if the race neutral ways won't get you what you need in order to have excellence and inclusion, then what are the tools that you could use that will be constitutionally acceptable?

RAY SUAREZ: Professor Swain, a quick last point.

CAROL SWAIN: I think people respond to whatever incentive structure has been in place, and the incentive structure that's been put in place in America is one that tells minorities that you can't do, that you're handicapped, and I think that there are other studies which show that minority students are closing the gap and that we'll never end up with lily white institutions if we create a fair system in America.

RAY SUAREZ: Guests, thank you all.

WALTER ALLEN: And we don't have a fair system in America.

JIM LEHRER: Still to come on the NewsHour tonight, Supreme Court arguments, the inspections timetable and a Clarence Page essay.

FOCUS SUPREME COURT WATCH

JIM LEHRER: Now, today before the U.S. Supreme Court, and to Gwen Ifill.

GWEN IFILL: In other business at the court today, justices heard debate on two high-profile policy issues. One involves the government's mandatory detention policy for legal aliens and the other, whether states can be sued under the 1993 Family and Medical Leave Act. Here as always to take us inside the court is Jan Crawford Greenburg, Supreme Court reporter for the "Chicago Tribune." Hi, Jan. Busy day today. Let's start with the family medical plan leave act. This involves a case of a state employee who feels like he didn't get everything that was due him, all the time off that he should have gotten in order to take care of a sick spouse. Under what circumstances, according to this case, would someone not be able to sue their employer if their employer is a state government?

JAN CRAWFORD GREENBURG: Well, as the law currently stands, and this is what the Supreme Court is being asked to decide, whether or not state employees can sue the state government if they believe they have not gotten their entitled leave and get back pay, money damages. A federal appeals court ruled that the man at issue here was entitled to pursue that kind of lawsuit. But the Supreme Court in a series of decisions involving different laws and of course different people over the last several years has dramatically scaled back state employees' ability to sue states if it feels the state has violated a federal law. For example, the court has ruled that state employees, in recent years, could not sue states for violating age discrimination laws and for violating the Americans with Disabilities Act, that those employees could not sue the state government to get back pay or lost wages.

GWEN IFILL: So this man had gotten the 12 weeks mandated that the law calls for, but he wanted more time and that was the dispute.

JAN CRAWFORD GREENBURG: Well, that was the dispute. And the facts at this stage are still unresolved, because the issue went all the way up just to determine that very key point, whether or not he had a claim at all, whether or not he could make his case that he was entitled to this twelve-week leave.

GWEN IFILL: But the state's argument is different, the state's saying that in order to impose this law on us, in order for the federal government to be able to abrogate the rules of a state, you have to prove that there is some history of discrimination.

JAN CRAWFORD GREENBURG: That's right, and that's what the court has ruled in those cases I just referred to in the age discrimination area and in disabilities discrimination, that the federal government before it can bend states to its will and make a state subject to these kind of lawsuits must put forth some evidence that states have been engaging in -- wholesale discrimination against state employees. And a lawyer for the state of Nevada where this case comes from today argued that Nevada, simply had not been engaging in that kind of discrimination, it was wrong to assume that state administrators had engaged in this type of discrimination.

GWEN IFILL: When we talk about discrimination, for the purposes of the Family and Medical Leave Act, what originally got this law to be enacted had to do about gender discrimination?

JAN CRAWFORD GREENBURG: Right, we're talking about sex discrimination, and that's why this case is tremendously important. The other issues the court has addressed, age, disability, obviously very important, but sex discrimination the court has always looked on a little differently, it has scrutinized laws more closely, if they are considered to be discriminatory based on gender. And so this case has trees importance and has been very closely watched by women's groups and other civil liberties groups. They know it will affect five million state employees and argues that the law is a tremendously important tool for combating sex discrimination. In fact, a lawyer today, a Georgetown law professor who is representing the man in this case, made the point very strongly that this law is designed not only to protect women from bias, to protect women from bias and promotion in hiring by employers who might assume they're going to be seeking time off in the future, but also to protect men from bias, because they may have been denied leave in the past.

GWEN IFILL: In fact, it's a man whose case is in court today.

JAN CRAWFORD GREENBURG: That's right.

GWEN IFILL: So let's take us inside the courtroom, and tell us what kind of clues we were able to read if possible from the arguments today.

JAN CRAWFORD GREENBURG: Well, it was in many ways a difficult argument because Justice O'Connor was largely silent.3 this cases, the once the court has decided in the past, have been very narrowly divided, 5-4, the more conservative justices voting to hold states immune from these lawsuits, the more liberal justices very vigorously dissenting from those decisions. The case today, the justices did not indicate that they were prepared to walk away from those positions. Of course, Justice O'Connor often can be a swing vote. I know that many of the women's groups hope that she will see this case differently and come over to the other side and make this case come out differently, but I couldn't tell from her questions today which way she was prepared to go. The other justices were I think easy to read and they suggested they saw this case much the same way.

GWEN IFILL: On the previous cases, has she been a swing vote

JAN CRAWFORD GREENBURG: She's generally than on the majority side. And again, this court has been captivated by these issues in recent terms and slightly other areas, this has addressed the scope of Congress' power vis- -vis the states and how much power the states can have, whether or not Congress has the power to pass certain federal laws or in this case and others whether it can make states subject to certain lawsuits. Let me make a very important point, though. And Justice Kennedy made this point during arguments today and he's made it in the mast in some of his opinions he's written involving other laws. This doesn't mean that states can go out and violate these federal laws willy-nilly -- they can refuse to offer these twelve weeks of leave, they can discriminate against someone because of their age. It just takes away the rights of employees to sue the state for back pay. If the employee hasn't gotten what he or she believes to be the required leave, they still could file an action against the state official and seek an injunction, seek to force the state to stop that behavior. Or they could turn to the federal government and ask it to pursue the claim. But the women's groups say that's just not good enough.

GWEN IFILL: The second case that was argued before the court today involved the mandatory detention of legal aliens. Now when we've been talking about detention on this program, detention of aliens, it always has to do with the terrorism roundups. Is this connected to that at all?

JAN CRAWFORD GREENBURG: No, it's not, and terrorism was not mentioned today during arguments. But of course when you hear detention of immigrants mentioned, the case is going to be closely followed and certainly people are looking for clues of what the court might ultimately decide. But this case did not address those issues.

GWEN IFILL: So how is this different?

JAN CRAWFORD GREENBURG: This case involves the rights of permanent resident non-citizen those have been convicted of crimes, many of them have lived in this country almost their entire lives, got into trouble with the law, convicted of a crime, served time, and it represents a challenge to a 1996 law that says those non-citizens if they've committed a certain type of crime must be detained during the course of their deportation proceedings.

GWEN IFILL: The government's case when they are challenged, when the ACLU I guess --

JAN CRAWFORD GREENBURG: That's right, ACLU is representing one of the immigrants.

GWEN IFILL: So what is the government's response if the ACLU says why shouldn't these people have access to lawyers, they are legal permanent residents, even if they are convicted of a crime.

JAN CRAWFORD GREENBURG: The government would say they've gotten their due process right throughout their criminal proceedings and they were convicted of a crime, and it's within the government's judgment to deport non-citizens who are convicted of certain in many cases violent offenses.

GWEN IFILL: So why not just deport them, why hold them?

JAN CRAWFORD GREENBURG: Well, I mean, they've got to still go through. Anyone within the boundaries of the United States are entitled to due process rights and they're still entitled to these hearings, and the issue is whether or not, as the ACLU argues, whether or not these non-citizens should be entitled to a bond hearing, an individualized bond hearing that could enable them to be released during the course of their deportation hearings. Many of these people have been held for long periods of time while awaiting those proceedings to conclude.

GWEN IFILL: Did the justices seem swayed in either direction?

JAN CRAWFORD GREENBURG: I think that the most vocal justices today seem to support the government and the I N S and the position that was taken by the solicitor general -- that the government had the right to implement this type of immigration policy, to protect and control our nation's borders, and as the solicitor general said, to prevent, as he called it, the culturalization of a large type of criminal class that's just kind of operating freely. The government maintains that they need to be able to detain these kind of non-citizens to prevent them from fleeing during the proceedings.

GWEN IFILL: Okay, well, Jan, we'll check in with you when we find out how these cases turn out. Thanks again.

JAN CRAWFORD GREENBURG: You're welcome.

FOCUS MORE TIME?

JIM LEHRER: Setting a time table for the inspectors in Iraq. Spencer Michels begins.

SPENCER MICHELS: Today's U.N. Inspections of one of Saddam Hussein's presidential compounds are part of an ongoing process that Hans Blix expects to last for months. The U.N. chief weapons inspector told the Associated Press that his Jan. 27 report to the U.N. Security Council will be an interim one.

HANX BLIX: Well, we are not the ones who have established the 27th of January as the end of history. But we were asked in that resolution to update the council. Update is not a final report, it's an updating about what has happened and what have you learned in these two months, and that's what we're going to do. And we can see a lot of work ahead of us, beyond that date, if we are allowed to do so.

SPENCER MICHELS: Yesterday Mohamed ElBaradei, head of the International Atomic Energy Agency, said the inspectors need at least a few months.

That tone was echoed by U.N. Secretary-General Kofi Annan.

KOFI ANNAN: I think the inspectors are just getting up to full speed. They are now quite operational and able to fly around and get their work done. And so I really don't want to talk about war, nor is the council talking about war.

SPENCER MICHELS: Prime Minister Tony Blair of Great Britain, Washington's strongest ally, also downplayed the significance of the 27th.

TONY BLAIR: We should wait and see what the inspectors find. The 27tth of January is the first time they'll make a full report; then I think things will be a little clearer.

SPENCER MICHELS: But the White House has sent different signals. In Sunday's Washington Post, an unnamed senior government official said the 27th marks "the beginning of the final phase, quickly leading to decisive action." The next day, White House spokesman Ari Fleischer suggested otherwise.

ARI FLEISCHER: The president has not put any type of artificial timetable on how long he believes is necessary for Saddam Hussein to prove to the world that he's going to comply.

SPENCER MICHELS: For his part, President Bush yesterday indicated impatience.

PRESIDENT GEORGE W. BUSH: Time is running out on Saddam Hussein. He must disarm. I'm sick and tired of games and deception. And that's my view of timetables.

SPENCER MICHELS: Meanwhile, the U.S. military buildup has also accelerated. Over the weekend, the Pentagon ordered 62,000 additional troops to the Gulf, which means there will be some 150,000 forces in the region in the coming weeks. The British have also deployed several thousand active-duty and reserve soldiers to the region. At the Pentagon, Defense Sec. Donald Rumsfeld and Gen. Richard Myers, chairman of the Joint Chiefs of Staff, denied the buildup would force the timetable to war.

REPORTER: There are some so-called pundits or experts inside the beltway who are saying now that America has gone so far down the to war that it's too late to turn back.

DONALD RUMSFELD: I don't think that's the case at all. I think the president has been determined that the Iraqi regime disarm. And how that is to happen, it could happen because the Iraqi regime decides to do that; it could happen because the Iraqi president leaves the country. It could happen in a variety of ways other than war.

GEN. RICHARD MYERS: Certainly from a military perspective there's no point of no return. I mean, I think the secretary was talking in broad context. But in a limited military context, there is no point where we can't adjust one way or the other, depending on what the president wants us to do.

SPENCER MICHELS: Rumsfeld said he has little confidence in Saddam Hussein's compliance.

DONALD RUMSFELD: And he's got a very effective denial and deception program. And if someone is sitting here thinking, "well, wouldn't it be nice if somebody walked up and handed you a chemical or a biological weapon, or physical evidence that they're within 15 minutes of having a nuclear weapon," that would be wonderful. It isn't going to happen.

SPENCER MICHELS: Back in Baghdad today, U.N. officials said that in additional to the presidential palace. They also searched a weapons depot and a private farm.

JIM LEHRER: Margaret Warner takes it from there.

MARGARET WARNER: How much time do the inspectors need? How much time should they get? To debate that, we turn to, David Kay, chief inspector for the International Atomic Energy Agency in Iraq in 1991 and 1992, focusing on Iraq's nuclear weapons development program. And George Lopez, director of policy studies at Notre Dame University's Joan Kroc Institute for International Peace Studies. He's also chairman of the board of the bulletin of atomic scientists. He is compiling a database that tracks the progress of U.N. inspectors in Iraq. Welcome to you both.

David Kay, are Blix and Baradei right when they say they need several months before they can ascertain whether or not Saddam Hussein has weapons of mass destruction?

DAVID KAY: Well, I think it's really what they view their task as. If they view their task as disarming Iraq, finding the smoking gun and going after that program, I don't think a few months will even be enough. The evidence from the first round of U. N. inspections is in seven years we didn't succeed in doing that. Whether they need additional time to determine whether Iraq is voluntarily disarming, I doubt that. We've had an Iraqi declaration that's filled with false evidence, it's incomplete, it's clear Saddam Hussein has not changed his policy from 1998 when the inspectors left.

MARGARET WARNER: So you're saying the search for the smoking gun is the wrong test?

DAVID KAY: I think that's a fool's errand. Iraq is a country the size of California -- 100 inspectors or even 300 inspectors with eight helicopters -- you would have to be not brilliant but incredibly lucky to stumble across a weapon. Let me tell you where they hid their biological weapons, and we didn't find them. They hid them in rail tunnels, they buried them by two runways in air bases and they hid them in the banks of the tigress river of now how are inspectors without defectors, would you pristine intelligence going to find that?

MARGARET WARNER: So George Lopez, would extra time do any good or would that be a fool's errant as David Kay just said?

GEORGE LOPEZ: Well, if the fool's errant is about the business of finding every aspect of biological and chemical development, you may are under some pressure in three or six months to find everything. But we are dealing with the largest and most empowered inspections regime in the history of disarmament. And we're dealing with a group of professionals who are resourced beyond any prior group, including the group of twelve years ago. So the prospects for getting most of the chemical agents, getting most of the biological precursors and continuing to monitor and install monitoring equipment is probably increasingly good, the longer they're there.

MARGARET WARNER: So you think the extra time that Blix and Baradei want will be productive?

GEORGE LOPEZ: I think it can't help but be productive. We're dealing with a technological capabilities and political goals. For those within the beltway or elsewhere that believe Saddam's time ran out long ago and disarmament via military force is the only answer, six months or six years isn't going to produce the answers they'd like. But for others in the international community who believe that we have the most intrusive regime one can have, this is a group that's about to do some historical uncovering and I think they might be given their day to do that.

MARGARET WARNER: What about that argument, David Kay, that just having all these inspectors there, having this intrusive regime, that essentially boxes Saddam Hussein in ray anyway?

DAVID KAY: Let's take that argument: Whether it's the most empowered inspection regime. Right now there are a little fewer than 100 inspectors in the country, they have eight helicopters, they have not used any u2 overhead flights yet, despite the fact we found that to be the most valuable tool. And they have not conducted any private inspections, they have, they may have rights, but we haven't seen them exercise those rights.

MARGARET WARNER: By private inspection what is do you mean?

DAVID KAY: Private interviews with Iraqi scientists. So right now, I don't see that they're actually carrying out anything as effective as the previous regime. But let's take the argument, what if you kept inspectors running around the country constantly harassing the Iraqis over a long term. Could they at least contain them? It's an interesting argument if you think you can do that. But go back to the history where we tried this once before. Militarization, demilitarization of the Rhine Land, inspectors, in fact far more inspector that we'll ever have in Iraq, and in fact the Germans rebuilt their military right under the nose of the inspectors. Why? Because the member states, France and Britain at that time, got tired of supporting the inspectors, didn't want to find the evidence. I think over time inspections decayed in terms of capability, they don't increase in capability.

MARGARET WARNER: You mean they decay because the threat behind it dissipates?

DAVID KAY: Political will. The threat disappears or other threats emerge, and the political will to maintain it. You've got competing interests. Economic interests in the case of the Russians and the French, political interests in the case of the Arabs vis- -vis Iran, for example, and wanting to use Iraq.

MARGARET WARNER: Mr. Lopez, what about that point?

GEORGE LOPEZ: Well, there's no question that a great deal of political interest surround the inspections. But let's separate the politics from the technology and the ability of the regime to do its work. We're dealing here with a group of folks who have access not to u2's at the moment but to unmanned drones, to ground penetrating radar, and particularly in the chemical and biological area with very sensitive equipment by detects not only whether or not things have been there but whether or not agents and precursors have been there in the last three or six months, whether or not they've been used. I think mart of the issue here is the difference between complete certainty, which would occur only with full-scale invasion in a war, versus those who believe that this inspection regime, as authorized by the council ought to be permitted to do its work. Is U.S. security, is global security compromised by Mr. Blix' analysis that he needs six or eight or nine months? Those who have been running out of patience as they say and are tired of the recalcitrant regime, they have a right to be impatient with Saddam, but we're dealing with very serious security issues and we're dealing with a very empowered regime which is only going to get more sophisticated in its ability to talk to scientists and engineers and do surprise visits. Why U.S. or global security would be compromised by that is curious to me.

DAVID KAY: Just on the point of technology, those people who think the inspectors have this amazing technology, I wish they would come to Washington. They might help the FBI and the postal service identify anthrax. Those of us in Washington today have watched the news stories as the postal service tries to determine, do they have another anthrax case or not. The latest news I heard before we went on is it might take three or four days before they can confirm that. And we still haven't found the anthrax perpetrator.

MARGARET WARNER: So what's your answer to Mr. Lopez' question, do you think that U.S. security is compromised by giving inspectors more time?

DAVID KAY: It depends on what you mean by more time. Is two weeks, three weeks, does it compromise U.S. Security, no. If you go six to eight months, if you think the outcome would be convince or convict Saddam of having weapons of mass destruction, and then eliminate him or eliminate the weapons, perhaps not. I think the more likely outcome of eight months a year, I've even heard one of the chief inspectors in private refer to two years as being necessary, as in fact Saddam gets off the hook yet again.

MARGARET WARNER: Mr. Lopez, Secretary Rumsfeld reiterated today the U.S. position today that the test shouldn't be on the U.S. or the inspectors to find this evidence but rather the burden was on Iraq to prove definitively that it had destroyed everything that inspectors thought they knew was there before. What about that argument?

GEORGE LOPEZ: I think that's absolutely right. We're dealing here with a regime which has a long history of being obstreperous. But one of the things or monitoring project has shown over the last couple weeks is that the first weeks of inspections in '91 differ greatly from the first six weeks now. It's true you're not getting full scale Iraqi cooperation, but you're also not getting refused entry into facilities. Let's monitor that more of the time and see what the prospects are. I continue to expect this regime to not provide full compliance in a cooperative way. But I have a great deal of confidence in the technological ability and the savvy of the inspectors to give us an analysis six or nine months from now that will tell us something. In addition, let's not forget that each and every step of the way where there's a compromised facility that did produce in '91, they're leaving or reinstalling the cameras and inspection equipment that was taken out after their departure. No other country in the world will have this came of intrusive regime in place and I think that may be one way of guaranteeing continued deterrence, maybe not compliance but continued deterrence over time.

MARGARET WARNER: As a practical and political matter, David Kay, is it pretty clear that Jan. 27 now is not going to be a trigger date for war?

DAVID KAY: I think Jan. 27 is an important date, but not a trigger date for war. I think it probably is the beginning of the final process in drawing a line under the inspection regime and Iraq's activity to it. And the crucial question is, has Iraq made a strategic decision to disarm itself voluntarily, or will the international community at some point have to exercise military force in order to disarm it. I think Jan. 27 will give you some pretty good data on that. The Iraqi declaration, and we've already seen both Blix and ElBaradei referring to that, the Iraqi declaration is an amazing mocking document of the U.S. system, they don't even admit things reported in the press, they don't even admit things they had revealed to UNSCOM prior to 1998.

MARGARET WARNER: But, briefly, Mr. Lopez, do you think that kind of word will have to come from Blix and/or Baradei before the international community is ready to endorse military force.

GEORGE LOPEZ: I think that will be part of the equation but not the only part. I believe that Mr. Blix' work awe not to be politicized. We ought to continue to empower that regime to be as intrusive and as successful as it might be.

MARGARET WARNER: George Lopez, Dave Kay, thank you both.

ESSAY CROSSING OVER

JIM LEHRER: Finally tonight, essayist Clarence Page of the Chicago Tribune considers Elvis Presley and Eminem.

CLARENCE PAGE: Reporter: If Eminem is not the new Elvis, he appears to be, at least, the latest Elvis.

EMINEM: Though I'm not the first king of controversy,

I am the worst thing since Elvis Presley.

To do black music so selfishly,

And use it to get myself wealthy.

CLARENCE PAGE: Yes, Eminem-- AKA Marshall Mathers, AKA Slim Shady-- pop culture's bad boy flavor of the moment. He takes the old complaint about white performers stealing black music, and puts it right back in our faces. "Yes, I know what I am," he says. "I've got a right to rap the blues. Nobody knows the troubles Slim Shady has seen, and I'm going to tell them. I am the latest white guy to get rich off a black sound, and you're making me a success-- or your kids are. So, deal with it."

SINGING: Shady's back tell a friend...

CLARENCE PAGE: With that, Eminem gives us what Memphis record producer Sam Phillips once said he was looking for when he discovered Elvis: "A white man who had the negro sound and the negro feel." He found it with Elvis...

ELVIS SINGING: Heartbreak hotel...

CLARENCE PAGE: And with Jerry Lee Lewis...

SINGING: Come on over whole lotta shakin'

goin' on...

CLARENCE PAGE: Who hid behind the bar or outside the windows of black juke joints to hear the young B.B. King and other masters of rhythm and blues. "The white negro." That was Norman Mailer's label in the 1950s for urban hipsters who embraced some romantic version of black outlaw culture as the epitome of what's cool. Now white rappers are accused of stealing black culture, especially when they're good at it. So was Elvis.

SINGING: You've got to kiss an angel good morning...

CLARENCE PAGE: But did anyone ever accuse a black country star like Charlie Pride of stealing white culture? ( Singing opera ) did anyone diss Leontyne Price for stealing European culture? The world has changed. Crossover is all the rage. Racial and cultural boundaries are meant to be crossed, especially these days. Today's biggest star in daytime TV is black. America's first black president, according to black writer Toni Morrison, was white. The biggest star in golf is black, and Asian, with some Indian and white mixed in. He's not denying any of it. One of the NBA's biggest rising stars at 7'5" is, yes, Chinese-- Yao Ming of the Houston Rockets. Who says Asian guys can't jump?

SINGING: I want to love you the best that

the best that I can...

CLARENCE PAGE: One of the biggest stars among white college guys is Darius Rucker of Hootie and the blowfish. One New York Times critic called him "the Colin Powell of rock." Speaking of crossovers, Powell seems to be everyone's favorite crossover act, with the possible exception of Harry Belafonte. Culture is made to be stolen, but not stagnant. Jackie Robinson took white baseball and reinvented the game.

ELVIS: Uh-uh honey lay off of my shoes

don't you step on my blue suede shoes...

CLARENCE PAGE: Elvis took black music and reinvented rock and roll. ("Purple haze" intro playing ) Jimi Hendrix took white rock and made it sound black again. Racial desegregation accelerated cultural integration. Among other results, we have Eminem, a white rapper. His medium is part of his message. The success of his first movie, "8 Mile," confirms the obvious.

EMINEM: I'm sorry mamma I never meant to hurt you...

CLARENCE PAGE: The movie is named for the road in Detroit where he grew up, a road that separates the worlds of black and white, urban and suburban, comfort and struggle. The movie is a hit, the critics love it. As Eminem is embraced by the mainstream you have to wonder: As rap enters its third decade is he giving a new energy to it, or is his acceptance by the mainstream a sign that rap has lost its shock value? That rap is just about played out? That rap is over.

ELVIS: You looking for trouble just look right in my face...

CLARENCE PAGE: When art loses its edge, it becomes generic. Yong Elvis becomes Las Vegas Elvis, a sequined parody of himself, the prototype for an endless Halloween parade of Elvis imitators.

SINGING: And did it my way...

EMINEM: I'm Slim Shady yes I'm the real shady

all you other Slim Shady's are just imitating

so won't the real slim shady please stand up

please stand up please stand up...

CLARENCE PAGE: Eminem didn't wait. When he declared the real slim shady, there really weren't any other Slim Shady's yet. I wonder how long this Slim Shady will last, when the shock value is gone and there are no more borders left for him to cross.

EMINEM: So won't the real slim shady please stand up...

CLARENCE PAGE: I'm Clarence Page.

RECAP

JIM LEHRER: Again, the major developments of the day. President Bush announced the Justice Department will join a challenge to affirmative action at the University of Michigan. And North Korea refused to drop its nuclear weapons program, in return for possible U.S. aid. We'll see you online, and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.