The NewsHour with Jim Lehrer

GWEN IFILL: Good evening. I'm Gwen Ifill. Jim Lehrer is away on a book and PBS station tour. On the NewsHour tonight: Our summary of the news; then, a two-part look at what happened inside the Abu Ghraib prison; a report from Baghdad on today's court-martial hearings, and two opposing views on the Justice Department's role in the treatment of prisoners; the Supreme Court rules on HMO lawsuits, and on what you can say when an officer pulls you over; President Clinton's big book-- we take the long view with historians Michael Beschloss and Richard Norton Smith.

NEWS SUMMARY

GWEN IFILL: A U.S. search team discovered the bodies of four American soldiers today west of Baghdad. They were apparently killed by Iraqi insurgents. To the north near Mosul, an attack on a convoy of civilian contractors killed four Iraqis. In Fallujah today, Iraqis protested a U.S. Bombing raid there Saturday they say killed civilians. U.S. Military officials said their target was a hideout for insurgents led by the al-Qaida- linked Abu Musab al-Zarqawi. We have a report narrated by Louise Bates of Associated Press Television News.

LOUISE BATES: In a display of unity, both Shiite and Sunni Muslims gathered in Fallujah to condemn the American air strike on the Iraqi city. The attack on Saturday leveled a house, killing at least 16 people. The U.S. Military say the building was harboring a prominent militant. But locals dispute the claim, and say innocent families were living there. "The myth about this militant is similar to that of weapons of mass destruction," this Sunni cleric says. "It's a pretext to strike peaceful towns and mosques, and we must be aware of the plot against Fallujah, Karbala and Najaf." A senior officer of the U.S.- backed Fallujah brigade also disputed the American claims, saying the rescue operation uncovered only the belongings of women and children. Fallujah's mayor, who met local leaders on Sunday, assured them he would sever relations with the Americans because of the air strike.

GWEN IFILL: The commanding generals of U.S. Forces in Iraq may have to testify in the prisoner abuse case. The American military judge's ruling today could require court appearances by Lieutenant General Ricardo Sanchez, leader of U.S. Troops in Iraq, and General John Abizaid, the chief of the central command. At a pre-trial hearing, the army judge, Colonel James Pohl, suggested other senior U.S. Officials might be also summoned. A civilian defense lawyer said he'd consider calling Defense Secretary Rumsfeld.

GUY WOMAK: His role in this case to me is that when he encouraged U.S. interrogators to be aggressive in seeking information and perhaps relayed to them the advice he had been given that these person are not protected by the Geneva Conventions then it would have the effect of loosening the reins on the intelligence community and they might be more aggressive in questioning than they would normally be.

GWEN IFILL: A U.S. spokesman in Baghdad said Pentagon lawyers will decide how to handle such a request, when and if it comes.

BRIG. GEN. MARK KIMMITT: I think it may be that, as a matter of course, anybody who is ever accused of a crime always wants the right to call witnesses, up to and including the President of the United States. And to avoid those types of frivolous actions, that typically when you start talking significant people that there has to be some measure of justification given to the judge for the right to call those witnesses. But I will defer all those questions to a trained lawyer, which I am not.

GWEN IFILL: The judge also ruled the Abu Ghraib Prison is a crime scene and cannot be torn down. The prison itself, he said, must stand until verdicts are reached in the abuse cases. President Bush had suggested demolishing the complex. The judge also refused, at least for now, to move the abuse trial outside Iraq. No trial date has been set. South Korea will proceed with plans to send 3,000 troops to Iraq, despite threats by militants to kill a kidnapped South Korean contractor. On a videotape broadcast on Arab Television yesterday, hooded gunmen threatened to behead the man by sundown tonight, unless the deployment is cancelled. The search for the remains of murdered American contractor Paul Johnson continued today in Saudi Arabia. The helicopter technician was beheaded Friday by his al-Qaida kidnappers. Three of them were killed in a shootout in Riyadh hours later. Yesterday, an al-Qaida statement said sympathizers in Saudi Arabia's security forces provided uniforms and police vehicles to help abduct Johnson. Saudi officials deny that. Iran seized three British naval patrol boats today, and arrested eight crew members. Britain's defense ministry said the boats were navigating the waterway between Iran and Iraq. Iran said the vessels entered its territorial waters. But a British defense ministry spokesman said the ships were being used to train Iraqi police forces. The Supreme Court today denied patients the right to sue HMO's for malpractice in state courts. The unanimous ruling applied to a suit involving an HMO's refusal to pay for physician- ordered medical care. The Supreme Court said existing federal law trumps state patient-protection law. In a separate decision, the Justices ruled 5-4 that people must identify themselves when asked to by police. The court said the requirement does not violate privacy or promote self-incrimination. We'll have more on today's Supreme Court's actions later in the program. Connecticut Governor John Rowland announced tonight he will resign July 1. Rowland, a republican, is at the center of a federal corruption investigation, and has been under threat of impeachment. Last year, he admitted he accepted free renovations on a summer home from state contractors, and then lied about it. The first privately funded rocket plane flew into space today. It was carried aloft to 46,000 feet before being released to soar 60 miles above the Earth's surface. It touched down safely after a 90-minute trip, to applause and cheers at the Mojave Airport in California. The $20 million aircraft was financed by Microsoft co-owner Paul Allen and designed by Burt Rutan.

BURT RUTAN: I just can't tell you how pleased I am that we have a ship that cannot only go to space, but it's the first time that a winged vehicle that can make this beautiful landing on a runway... it's the first time that a winged vehicle can have a carefree re-entry.

GWEN IFILL: Wachovia, the nation's fourth-largest bank, is buying competitor Southtrust. The companies announced today their merger will take 15 months. The Southtrust name will eventually be dropped, and up to 150 of its branches will close. The combined bank will hold $464 billion in assets, making it the largest in the Southeast. On Wall Street today, the Dow Jones Industrial Average lost nearly 45 points to close at 10,371. The NASDAQ fell 12 points to close at 1974. Retief Goosen is golf's new U.S. Open champion. The South African edged out masters winner Phil Mickelson yesterday, at the Shinnecock Hills course on long island. He finished at four under par. And in other sports news, Ken Griffey, Jr., hit his 500th career home run yesterday. He is only the 20th player to do so. The Cincinnati Reds slugger reached the milestone in St. Louis, in a 6-0 victory over the cardinals. That's it for the News Summary tonight. Now it's on to the Abu Ghraib hearings, how prisoners should be treated, the Supreme Court rules, and Bill Clinton weighs in.

FOCUS - FOLLOWING ORDERS?

GWEN IFILL: And to Ray Suarez.

RAY SUAREZ: For more on the prisoner abuse story we get two views, John Yoo is a professor at the University of California in Berkeley. From 2001 to 2003, he served as a deputy assistant attorney general at the Justice Department. He's the author of the January 02 memo on what constitutes torture. Kenneth Roth is executive director of Human Rights Watch which recently issued a report called The Road to Abu Ghraib. Kenneth Roth, the Iraq defendants want copies of the Justice Department memos in order to argue that the policies on torture apply to them and it should be understood that there was an atmosphere of license and that should be part of their argument. Should they get those memos and can this be extended... can the memos be extended to their case?

KENNETH ROTH: Well, unfortunately they seem to have a credible argument when they contend that senior administration officials, particularly a group of lawyers, created a permissive atmosphere when it came to torture or other severe abuse of prisoners. What you would have expected from Justice Department lawyers was a conscientious effort to apply the law or at least an effort to state what the law was in an objective manner. But instead what we see from these memos is an effort to find the legal loopholes, to permit a range of abuses that frankly any objective observer would find to be flatly illegal. Now we don't know whether they were doing this on their own initiative or whether they were doing this under orders from more senior non-lawyer officials in the Bush administration, but either way there seems to have been a signal sent that anything goes and virtually anything goes when it comes to interrogation and somehow or other the lawyers will find a way to mount a defense and get the interrogator out of any potential prosecution.

RAY SUAREZ: KennethRoth, even if these legal opinions were harvested to apply to prisoners in Guantanamo Bay and prisoners caught in the war in Afghanistan?

KENNETH ROTH: Well, if you're asking were these memos a correct statement of the law, no, not at all. I think that they twisted the meaning of the prohibition of torture. They virtually ignored the parallel prohibition of cruel, inhuman or degrading treatment. Now the initial memos were written about Afghanistan and Guantanamo, but what we have now seen is that there were parallel memos that closely tracked the initial ones written by the Defense Department just before the Iraq war. So there does seem to have been a carryover of value to these memos. Indeed there was even carryover in terms of personnel. General Miller who was overseeing the interrogation in Guantanamo later went and tried to bring Guantanamo methods to Abu Ghraib so there does seem to be some ongoing relevance to these memos even beyond the Afghanistan context for which they were drafted.

RAY SUAREZ: Professor Yoo, should the defendants in Baghdad be able to use these memos as part of their defense?

JOHN YOO: First, let me make clear that I'm only speaking now in my capacity as a law professor. And I'm not in any way commenting and I cannot comment on the legal advice or work I did with the Justice Department. Second, certainly a defense attorney should be able to explore any legal theories that he believes may reasonably and credibly aid his defense. I don't see any problem with a defense attorney seeking these memos. I do have to say, though, and I think we should make clear that these memos that have been released on the Internet and discussed in the newspapers do not actually discuss Iraq. Iraq as a conflict is covered by the Geneva Conventions. The president and the Pentagon made clear at the beginning of the conflict that they were covered by the Geneva Conventions. The conflict with al-Qaida is a different conflict. And Al-qaida, which is a terrorist organization, is not a state. It has not signed Geneva Conventions. It does not obey the laws of war. The very purpose to cause massive civilian casualties violates the very core notion of the laws of war. They're not covered by the Geneva Conventions so I think those are two separate legal issues, and I think certainly the lawyers should be entitled to try to explore any possible links if they believe they're there, but I don't think that there are those links there.

RAY SUAREZ: So far the judge has denied the civilian defense attorneys in these cases access to the memos, but let's talk a little bit why they were written in the first place. Did the executive branch officers want to have a template, a handbook on what was and what wasn't torture?

JOHN YOO: Again, I can't address that question. I can't talk about what I did in the department or what I might have seen in the department. Let me say this. Just as an observer, you would want, I would think, the government to ask questions about the meaning of statutes that were passed by Congress. There is a torture statute, you know, passed by Congress in 1994. And it defines torture as the specific intent to inflict severe mental or physical pain or suffering. I would think that in a war such as this one, an unprecedented war against a new kind of enemy that can inflict the kind of damage that could only be inflicted in the past by a nation-state I would think you would want the government to ask the legal advisors what does this statute passed by Congress publicly mean because you need to know before you shape policy what the legal rules are. The other point I'd make is just because the government asks that question and wanted to know what the law was doesn't necessarily mean that the policy that was drafted ran all the way to the limits of the law. For example, with the Guantanamo Bay situation, the president ordered that the military at Guantanamo Bay treat all the detainees humanely and consistent with the principles of the Geneva Convention. That's a policy decision. It doesn't necessarily run as far as the legal rules would allow. So you shouldn't equate what a different memos interpreting standards set out by Congress did with the policy that the White House and the Pentagon eventually articulated and followed.

RAY SUAREZ: Kenneth Roth in your reading of the international covenants to which the United States is a signatory, is there a lot of difference in the standards and the legal definitions set out in our treaty obligations and set out in these memos concerning torture and its definition?

KENNETH ROTH: Yes, I have to say reading the memos I barely understand the international legal obligations. I just don't see them reflected there. Let me make a few points if I could. First to say that the Geneva Conventions don't apply in Afghanistan but do apply in Iraq is a bit of a red herring because in those places there was a separate treaty that clearly did apply: The convention against torture and other forms of cruel, inhuman, or degrading treatment. The memos purport to interpret that separate treaty but basically interpret it almost out of existence by defining torture in such a narrow restricted way that it is virtually no longer a constraint on interrogators. Second, we do know the context in which, for example, the principal Justice Department memo was written. It was in response to a request from the CIA to the White House counsel saying please give us guidance on the kind of interrogation that we can do. And the response from the Justice Department was basically, you can do almost anything you want because we'll come up with a defense to deal with any possible criminal prosecution. Finally when it came to implementation, we do know how that policy was implemented. The president may have said they're going to treat people in Guantanamo humanely but at the same time the Defense Department approved a series of so-called stress interrogation techniques which were clearly illegal -- things such as stripping people naked, hooding them, depriving them of sleep for long periods, subjecting them to stress positioning, putting them in very painful positions for long periods or subjecting them to extremes of heat, cold or light or dark - and that, all of those or most of those are flatly prohibited and render meaningless the vow that these detainees would be treated humanely.

RAY SUAREZ: Professor.

JOHN YOO: Well, I think there's an important difference between what our international obligations under the treaty might be and how Congress implemented them. So the United States ratified the torture convention and then left it up to Congress to implement it as a matter of domestic law. It's from that implementation and a federal statute passed in 1994, signed by President Clinton, that the Congress defined torture and defined it in a pretty strict way. But that's Congress's definition: Specific intent to inflict severe mental or physical pain or suffering. That's not the Bush administration's definition. That's Congress's definition. So it's one thing. The second thing about the defenses that Ken mentioned, the treaty, the torture convention treaty, and Ken is right, does preclude certain kinds of defenses. You cannot claim necessity as a defense to prosecution for torture. You cannot claim you're in wartime in emergency situations. However, Congress did not implement those defenses. Congress only implemented the definition of torture. And in general in the federal criminal law unless Congress specifically takes away your right to claim self-defense or takes away your right to claim, necessity then the defendant, any defendant who is charged with it, would obviously be able to raise them.

RAY SUAREZ: What about the notion that you're following orders? It's my understanding that the Geneva Convention does not allow that as a defense but in these memos fairly sweeping and broad powers were given to the president to authorize certain kinds of behavior.

JOHN YOO: Well, I think the way to think about this is what's commonly called the ticking time bomb hypothetical. That's a situation where suppose a terrorist has a weapon of mass destruction in an American city. And we capture a high-ranking al-Qaida leader who we think has information about where that bomb is. Now no one is saying, well, the memos don't say you should torture that person or you should do a, b or c as a matter of policy. It doesn't address that but it does talk about if you look at, if such an extreme situation arose, we don't want to, I believe, take certain options away from the president if by doing, you know, aggressively interrogating someone you could save thousands if not millions of American lives. It's not saying that in every specific situation where any American soldier might step over the line that there's going to be a defense of following orders. But it does say if the president within his commander in chief authority does issue an order in certain extreme situations I think the memo does say that you might be able to raise that as a defense.

RAY SUAREZ: Kenneth Roth, is that how you read the powers given the president?

KENNETH ROTH: Let me just if I could first respond to a point that John just made which is I think maybe a heart of our disagreement here is that the memo-- I don't know whether John had anything to do with that particular memo or not-- but the August 2002 memo basically asks what does domestic criminal law proscribe? It doesn't ask the separate but equally important question, what did the United States vow not to do when it ratified the convention against torture? What were its declarations to the rest of the world? And so Congress only prohibited torture. It actually defined torture in basically the same terms as the convention against torture. It didn't criminalize the separate prohibition of cruel inhuman or degrading treatment. There's no criminal statute there. But nonetheless the Senate ratified, the president signed, a treaty that prohibited cruel, inhuman or degrading treatment so the president is still bound by the international law even though there is not a formal crime there. But the memo basically ignores that non-criminal set of restrictions on the president. Separately, it runs to a series of defenses. These are perhaps the most appalling parts of the memo because these apply not only to cruel, inhuman or degrading treatment but also to outright torture. For example it asserts the so- called commander in chief authority of the president to order torture basically saying by virtue of being commander in chief he can throw out some of the most basic prohibitions of international law whether it's in the Geneva Conventions or the convention of torture. By that logic you may as well let Milosevic go free tomorrow because he was commander in chief or release Saddam Hussein because he was commander in chief when he committed genocide against the Kurds. I mean, that is a radical theory that should never be endorsed by the U.S. Government.

RAY SUAREZ: John Yoo, commander in chief authority is cited several times in these memos. What is it?

JOHN YOO: The commander in chief authority comes from Article 2 of the Constitution. It states that the president is the commander in chief of the military and by tradition has always been interpreted to give to the president the decisions on how to wage war and traditionally under our system Congress has not interfered with those kinds of decisions. So, for example, in cases of conflict what would have happened if Congress had passed a statute at the end of World War II prohibiting the use of nuclear weapons could the president, President Truman at that time, still as commander in chief decide to use them. The argument that Ken is making is basically that Congress does have that authority, that Congress could restrict how the president makes tactical, strategic or operational decisions.

RAY SUAREZ: Quickly, what about his idea that it's a radical departure from earlier law concerning the rights and the powers of the president.

JOHN YOO: For example, take the War Powers resolution -- Congress tried to prevent the president from using armed force for longer than 60 days. That statute has never been accepted as constitutional since and including President Nixon and was violated in the Kosovo operation by President Clinton.

RAY SUAREZ: Professor Yoo, thanks a lot.

JOHN YOO: Thank you.

GWEN IFILL: Still to come on the NewsHour tonight: Today at the Supreme Court; and a presidential memoir.

FOCUS - SUPREME COURT WATCH

GWEN IFILL: Jeffrey Brown has the latest on the Supreme Court decisions.

JEFFREY BROWN: The justices issued two significant decisions today, one involving a patient's right to sue their HMO; the other requiring a person to identify themselves to the police. Here to tell us about these cases I am joined by Marcia Coyle of the National Law Journal.

Marcia, welcome back.

MARCIA COYLE: Thank you.

JEFFREY BROWN: Let's start with the HMO Case. This one involves two separate patients in Texas who claimed that their HMO Refused to pay for treatments their doctors had prescribed. Tell us more.

MARCIA COYLE: In 1997 Texas became the first state to allow patients to sue their HMO's in state courts for injuries that may have resulted from the HMO's negligently altering or rejecting a physician's course of treatment. Juan Davila's physician had prescribed Vioxx or his severe rheumatoid arthritis. When he went to fill the prescription he was told that his HMO, which was Aetna, would not cover that unless he tried two less expensive drugs. He did try one of them. He had a severe reaction, came within three hours of dying because of internal bleeding. He today can now not take any pain medication that's absorbed through the stomach. Ruby Calad had been pre-certified by her HMO, which was CIGNA, for a one-day hospital stay after surgery for a complicated hysterectomy. After the surgery, her physician recommended a longer stay. Her HMO would not cover the longer stay. She left the hospital, had complications, ended up back in the emergency room and in the hospital. Both of them sued under Texas law.

JEFFREY BROWN: All right. So they sued under state law --

MARCIA COYLE: Yes.

JEFFREY BROWN: Let's... just to be clear here, they could and still can sue under federal law, in a federal court? So what's the big deal? Why is it important to get into state court?

MARCIA COYLE: All right. The HMO's in this case and in most cases like this will argue that they cannot be sued in state court because of a federal law commonly known as ERISA. It's the Employee Retirement Income Security Act which was passed in 1974 by Congress. They say that that law sets out a national, uniform scheme for regulating HMO's and it trumped the Texas law here. The difference between filing in state court and federal court under ERISA has to do basically with money. In state court, the patient would have available all of the remedies available under state law: Damages; compensatory damages; punitive damages. Suing in federal court under ERISA, you have very narrow remedies. You can only get the cost of the service or been benefit that was denied or maybe an injunction against the HMO to provide the service that was denied.

JEFFREY BROWN: ERISA, of course, was set up to deal with employee benefit programs but it does cover these health programs as well.

MARCIA COYLE: It does. When it was enacted in 1974 the concern was pension plans. But the law began to encompass health benefits. The law is designed to protect the participant and the beneficiary of employee benefit plans.

JEFFREY BROWN: Okay. So the court... there was a unanimous decision today. What did they decide?

MARCIA COYLE: The court was led by Justice Clarence Thomas, and basically they agreed with the HMO and the Bush administration's characterization of what kind of claims were being made here. The court said that basically what Calad and Davila were claiming was that they had been denied coverage. That is a benefit determination that is part of the administration of an ERISA plan. It fell under ERISA. ERISA was intended to comprehensively regulate this area. So any state law that supplements or tries to supplant the ERISA scheme has to fall. It's trumped.

JEFFREY BROWN: So clear victory for the managed care company.

MARCIA COYLE: Very clear victory.

JEFFREY BROWN: Patients are left with staying with federal court.

MARCIA COYLE: That's right. They are. We should note that Justice Ginsberg wrote a concurring opinion in which she said that even though she agreed with the court's decision there's a real inequity developing here in how ERISA is being interpreted by the courts and playing out in the courts. Because the Supreme Court has interpreted ERISA pre-exemption broadly and the remedies under ERISA narrowly, she said that many people who are harmed by conduct by HMO's are not able to get complete relief. She called on Congress to step in here and bring the law up to date.

JEFFREY BROWN: Okay. Second case is a Nevada man who was approached by the police for a potential assault charge or assault case. They were investigating. They asked him to identify himself and he refused.

MARCIA COYLE: Yes he did.

JEFFREY BROWN: Tell us about that.

MARCIA COYLE: Nevada is one of 20 states that has a law that says basically, if a police officer has a reasonable belief that you are involved in a crime and he asks you for identification, you must identify yourself. You don't have to produce a document. But you have to say who you are. This police officer in Nevada was investigating a domestic assault. He stopped Larry Hibble who was possibly the perpetrator of the assault and did ask him to identify himself. Hibble refused 11 times, was arrested under the Nevada law.

JEFFREY BROWN: He left no doubt about it -- 11 times.

MARCIA COYLE: Right; 11 times. He was arrested and fined $250. He turned around and challenged the law saying it violated the Fourth Amendment of the Constitution which protects you against unreasonable searches and seizures, and the Fifth Amendment of the Constitution which says you have a right not to make a self-incriminating statement.

JEFFREY BROWN: Now the court did not buy those two arguments but it was quite close.

MARCIA COYLE: It was. It was a 5-4 decision. Justice Anthony Kennedy wrote the majority opinion. He said that this law and probably others like it do not violate the Fourth or the Fifth Amendment. He said giving your name to a police officer when he has stopped to investigate a crime is reasonably related to the purposes of that stop, which is to get information that may either incriminate you or it may clear you. And so there is no Fourth Amendment violation. There was no Fifth Amendment violation, he said, either because this man had no reasonable believe that just giving his name would incriminate him in the assault investigation.

JEFFREY BROWN: What about the four Justices in the minority?

MARCIA COYLE: They saw it very differently. Justice Stevens wrote separately in dissent and he said that he felt that there was a Fifth Amendment problem here, that given the databases that law enforcement has access to today, a name can be a very important chain in a link... in a link to a crime. He thought that it could be incriminating under the Fifth Amendment. Justice Breyer wrote separately in dissent. He and Justices Souter and Ginsberg said that the court for 20 years had said police can stop you and ask you questions but you don't have to answer. And this was a change in the law in policy that would probably make it more difficult not only for the person stopped but for the police to know how far they can go with their questions.

JEFFREY BROWN: The larger context here briefly, of course, is today's heightened security. We have this constant balancing now of personal privacy versus the ability of the police to do their work. Can you fit this into that?

MARCIA COYLE: Absolutely. The government is raising the security concerns, national security concerns. It's also raising its need to aggressively investigate suspected terrorists. That did come up in this case. No one knows if that was figured largely in the Justices' minds, but it is there.

JEFFREY BROWN: Marcia Coyle, thanks again.

MARCIA COYLE: Thank you.

FOCUS - HIS LIFE

GWEN IFILL: Former President Bill Clinton's presidential memoir, titled "My Life," goes on sale tomorrow in bookstores across the country. In the first of what will be a series of interviews about the book, the former president appeared on CBS' "60 Minutes" last night. Among the book's targets: Independent Prosecutor Kenneth Starr, whose Whitewater investigation ultimately led to Mr. Clinton's impeachment.

BILL CLINTON: Starr issued his report and there were hundreds and hundreds of references to sex, and two to Whitewater, and that there was really nothing to Whitewater. It was nothing. It was a deal I lost money on. I made a business investment and lost money. It cost over $70 million. And we were exonerated in whitewater, exonerated in the Vince Foster suicide, exonerated in the campaign finance reform, exonerated in the White House travel office deal, exonerated in the FBI File case. They indicted innocent people because they wouldn't lie. And they exonerated people who committed crimes because they would lie. And they did it because it was nothing but a big political operation designed to bring down the presidency. I will always be proud that when they moved on impeachment I didn't quit, I never thought of resigning, and I stood up to it and beat it back. To me, the whole battle was a badge of honor. I don't see it as a great stain, because it was illegitimate.

GWEN IFILL: So was it a badge of honor, as the president old Dan Rather, or was it history rewritten? Bill Clinton joins a long line of former commanders-in-chief who have used the presidential memoir to tell the story from their points of view. But how does this effort compare? For that we turn to historians Michael Beschloss and Richard Norton Smith, director of the Lincoln Presidential Library and Museum.

Michael, badge of honor? Is he rewriting history? Which is it?

MICHAEL BESCHLOSS: That's what we're going to know 30 years from now. The biggest thing Bill Clinton will do in this book or try to do is to argue that impeachment was unwarranted, he was treated differently from other presidents. If that takes hold, his reputation in history is going to rise. If, however, people don't listen and 30 years from now people think the impeachment maybe was warranted and this was something that was justified, that's going to have a very big effect on his reputation going down.

GWEN IFILL: Richard, do these things ever take hold?

RICHARD NORTON SMITH: That's a good question. James Buchanan wrote a memoir after the Civil War in which he tried to justify his action or inaction before the Civil War. He went to his grave believing that historians would agree with him that he had been a president than most of his contemporaries. He turned out to be even less successful as a prophet than a president. Herbert Hoover wrote three volumes chock a block with statistics in a mostly unsuccessful attempt to persuade history that he had really broken the back of the Depression by 1932. And Richard Nixon wrote a memoir even longer than Bill Clinton's, some believe actually the most readable of recent presidential memoirs and yet it has had no significant impact on the judgment of history. By and large presidents try as they will to influence that judgment, the presidential memoir is a very faulty vehicle for doing it.

GWEN IFILL: It should be mentioned as Richard alluded to this is a 957-page memoir that neither the three of us have read. We've read the excerpts. We've seen the interview so far. So, that said, this one apparently is incredibly personal and talks about his marriage and about his personal foibles, his childhood and talks about how he lived this parallel life. Is this far more personal than you usually find in one of these books?

MICHAEL BESCHLOSS: Yeah, it sure is. Bill Clinton I think is very shrewd because he knows that a lot of the people who have been critics of him not only in Washington but around the United States just don't like him personally for various reasons. And if he could say to people you may not like the way I ran my life but there are reasons for this. I had a tough childhood. You should admire the fact that I rose above adversity. I think he's gambling in a way that's not scholarly that people will see this, they'll begin to sympathize with him and maybe understand him.

GWEN IFILL: Could a memoir like this, Richard, have been written by any previous president or is it a creature of its time, especially this intensely personal creature?

RICHARD NORTON SMITH: I think it's very contemporary. Bill Clinton is a very contemporary figure. You almost feel as if the co-author of this book is Oprah. This is kind of history.

MICHAEL BESCHLOSS: It may be.

RICHARD NORTON SMITH: This is history therapy.

GWEN IFILL: I think he'll be on Oprah tomorrow so we'll find out.

RICHARD NORTON SMITH: There's a lot of pop psychology here. There's a lot of trace to go the origin what he refers to as his demons, what an earlier generation might have called character flaws. You know, it's interesting. Michael knows this better than anyone because he's heard more of Lyndon Johnson's real words than anyone else. One of the frustrating things you wish other memoirs had been more personal. When Lyndon Johnson wrote his post White House memoirs called the Vantage Point he would talk them and no one talked better than Lyndon Johnson. And he would see these wonderful pungent stories in print and he would take them all out. He said I can't say that. I have to be presidential. At least I tip my hat to President Clinton for apparently giving us a memoir that is less embalmed in official language than most presidential memoirs.

GWEN IFILL: Do you agree with that, Michael?

MICHAEL BESCHLOSS: I do. Ronald Reagan got a huge amount of money for his memoirs; had a ghost writer hired by himself and the publisher. They hoped to get him to be a little bit introspective. Whatever Reagan's strengths were, self-knowledge and introspection were not among the... at the top of the list. It was so much so that the book was written and there was a press conference in New York when the book was published -- everyone saying how wonderful the book was. Reagan apparently held up a copy of the book and said I hear it's terrific. Maybe even some day I'll read it.

GWEN IFILL: No one minded being a ghost writer. At least he didn't mind being a ghost writer. Richard, let's talk a little bit about one of the substance issues which is a foreign policy piece. He says the difference between him and Republicans is that Democrats try to cooperate first and act if they must. Republicans act first and then cooperate if they must. Knowing what you know about what presidents' choices have been and what this president's choices were at the time that he was in office, what do you make of that?

RICHARD NORTON SMITH: I'm not sure what to make of that. That sounds like a fairly conventional, you know, that is not Oprah speaking. I mean that is a very conventional presidential argument which is also an exercise in settling scores. It will be very interesting when we actually open this book and see if the tone of this book particularly the account foreign policy domestic policy and politics, the second half of this book which apparently is the part that deal s with the Clinton presidency, whether it is more like the clip that we saw last night from 60 Minutes which was really an exercise in score settling.

MICHAEL BESCHLOSS: My guess he wouldn't have written that if we had not gotten involved during the last year in what is now in many ways a very unpopular war against Iraq in which the current President Bush is criticized for collaborating. That's something that runs through these memoirs. They're oftentimes written with the lens of what happened after the president left office. One of the things I think we saw in the interview last night, probably we'll see in the book, is that Bill Clinton pays a surprising amount of attention to Osama bin Laden. Said last night one of the things I'm sorriest about was that I didn't get bin Laden when I was president. If 9/11 had not happened I don't think we would have heard him say that or write it.

RICHARD NORTON SMITH: That's another interesting point because as Michael said earlierit will be 30 years until we have access to all the documentation to know if the amount of attention that President Clinton devotes to Osama bin Laden in this book reflects accurately the amount of attention in real-time that he and his administration devoted to Osama bin Laden.

GWEN IFILL: One thing that Bill Clinton has anything in common with Richard Nixon is when they both left office there was still a cloud there. President Clinton says when people look back they will realize he did more good than bad or there was more good than bad. What's your take on that, Michael?

MICHAEL BESCHLOSS: I think people may well feel that way. I mean, when they read this book, they can't help but be drawn back whether they disagree or agree with what Bill Clinton did with a sense of Clinton nostalgia a period in which there were balanced budgets and peace in the world and a huge economic boom for whatever he'd like people to remember that not only for his own reputation but I think he feels that that will also help Democrats running in his aura.

GWEN IFILL: Did Richard Nixon do that?

MICHAEL BESCHLOSS: Nixon had something else that he was motivated by that was to show things from his own point of view. A third of his memoirs which were even longer than Clinton's believe it or not, they were over a thousand pages. A third of that book was on Watergate. He was forced to write on Watergate by his publisher which paid him $2.5 million which was a lot of money especially in 1974, write much more than he wanted to. But the argument he was trying to make was a little bit like Clinton with impeachment, that maybe I did some things wrong but it was not justified for me to be removed from office for doing things that earlier presidents had done. Nixon also argued people forget I was a president in war time dealing with wire tapping or dealing with leaks to the press and so forth. People had to understand what he did in Watergate in that context. It didn't hold much water.

GWEN IFILL: Richard, what do you think of that Nixon parallel if there is one?

RICHARD NORTON SMITH: Well, there is in a sense. Richard Nixon used to say it would take 50 years for anyone to write about him objectively. The fact is that both men, in very different ways, engendered intense feelings. They polarized the electorate. They really defined their eras in that sense. For a lot of people who go out and buy this book tomorrow it's almost a political act. They may or may not read the book but particularly in the highly charged of feelings of an election year they'll be make ago political statement. They'll be suck jesting their solidarity with Bill Clinton and maybe Hillary Clinton and maybe the Democratic Party. It takes time for passions to cool, for per tiffs to form and papers to become available. And, you know what, there are three presidents, bipartisan - Harry Truman, Dwight Eisenhower, Ronald Reagan -- all of whom have reputations significantly higher today than when they left office. In all three cases that's in spite of the memoirs they wrote not because of them.

MICHAEL BESCHLOSS: And in Clinton's case I think Richard is right. It's going to take longer for him to pass to into history because not only are the feelings still so intense, not only is he still 57, you know, in his late 50s, a young man, but also something we've never seen in history before. He has a wife who is a senator from New York who very possibly will run for president in four or eight years so everything he does is in that context.

GWEN IFILL: Well then why not wait 15 years or so and invest more perspective into his time in the presidency than rush a book out right now?

MICHAEL BESCHLOSS: It's because what presidents normally do once they get out and also given Clinton I think he felt that it's very important for him to get his side of the story into the mix as quickly as possible to affect not only Americans but also later historians.

GWEN IFILL: Richard, what do you think?

RICHARD NORTON SMITH: Presidents are human. They miss the center of the stage. They miss the spotlight. This president probably more than most.

GWEN IFILL: Could it be money as well? Not only Bill Clinton is not the only president who left without a whole lot of cash on hand when he left office.

RICHARD NORTON SMITH: Yeah, I mean Harry Truman went home to independence broke. There was no presidential pension in those days. He wasn't going to take money for speeches; he wasn't going to serve on boards so basically when he signed a contract for $600,000 for two volumes of memoirs it was the first money he ever made in his life. Richard Nixon and Bill Clinton needed money as well for a very different reason. Each of them had run up very significant legal bills while in white house.

GWEN IFILL: Richard Norton Smith and Michael Beschloss, happy reading.

MICHAEL BESCHLOSS: Thank you, Gwen.

RICHARD NORTON SMITH: Thank you.

FOCUS - REMBRANDT'S JOURNEY

GWEN IFILL: We apologize that due to technical problems we were unable to broadcast our report on the Abu Ghraib hearings today but we close now from a report from Paul Solman of WGBH-Boston on a major Rembrandt exhibition.

PAUL SOLMAN: The most famous brand name in western art. In America alone it graces toothpaste, bracelet charms, restaurant and bars, countertops and of course the town of Rembrandt, Iowa just halfway around the world from the Rembrandt Hotel in Bangkok, Thailand. Funny thing is Rembrandt might have been quite pleased with such widespread notoriety. He was, of course, to a show that's just finished touring the country after many months one ambitious guy whose work was among other things an advertisement for himself. Boston Museum of Fine Arts curator Ronni Baer starts with a self-portrait at age 23.

RONNI BAER: And I think it was made to show the Amsterdam burgers what he could do. I think he is showing off his talent for capturing every kind of material you can envision. He shows us the nap of the velour versus the heavyweight of the gold chain versus the more thin inter-woven lines that make up the scarf.

PAUL SOLMAN: And he showed off his talent for capturing his none too retiring self. In the 1600s Protestant Holland had become the trade hub of the western world. And while the spirit of capitalism may not explain the birth of a Rembrandt or dazzling contemporaries like Vermeer wealth made a mark for their work especially in Amsterdam.

RONNI BAER: It had the first stock exchange. It was the center of power and trade and riches, and people were making a fortune being merchants. So it was really... it was a hopping place 17th century Amsterdam.

PAUL SOLMAN: And a hot market for a self-promoting university portrait painter with a one word name: Rembrandt.

RONNI BAER: Nobody did that in Holland surely. The people who did that before him were Tisha and Rafael and Michelangelo.

PAUL SOLMAN: Not that Rembrandt didn't have a lot else going for him. His skill won him prestigious commissions in Amsterdam. His flare for the dramatic gave great appeal to his scenes from the bible as here when Delilah, having gotten Sampson drunk, awaits her accomplices to cut off herlover's awesome hair. Moreover, Rembrandt showed off his success. He became a well known collector of exotic objects. He bought the priciest house on a fancy block. It costs millions in today's dollars. He bought costly clothes which he wore even when he worked. He was intent, it seems, on announcing the noble status of the artist. Here as he lavishes attention on what was, after all, a form of manual labor.

RONNI BAER: He gives us his various palettes and the grinding stone and the....

PAUL SOLMAN: Grinding the paint.

RONNI BAER: For the pigments. The pigments would be dry. They would be mixed with oil, linseed oil which would be in these containers on table in the back. His easel has this rough spot where the feet of the painter would have rested because painters painted sitting down not standing up. But in terms of painting technique the thing I love about this painting is the single stroke of white that stands for the side of the panel. I think it's superb.

PAUL SOLMAN: Rembrandt was a realist craftsman who showed off his craft to sell his work. His paintings brim with self-confidence as this in bold oil sketch of the entombment of Christ painted with an almost modern bravado. His drawings were dashed off with a Zen-like assurance. His etchings complete and elaborate works of art in themselves which sold in great quantity to two Dutch middle class. Like the etchings says print curator Tom Rassieur known as the hundred gilder print, a huge amount at the time.

TOM RAISSIEUR: People realized that this was an extraordinary price to pay for a print and word got around and the name stuck. In fact, it's almost hard to get beyond calling it the hundred gilder print and actually get into the image and see that it's about Christ preaching and that it's a very complicated image in which all these individual bit players have different relationships to Christ. You have the rich man who has been told that it's more difficult for a Richman to enter the gates of heaven than it is for a camel as we see over here to pass through the eye of a needle.

PAUL SOLMAN: Meanwhile there are the pharoses, the poobas of the temple who warn the people to steer clear of Jesus. There are the lame looking for a miracle cure from the beacon of God, the light of the world. There's a woman praying in his presence.

TOM RAISSIEUR: And the close connection between her and Christ is made so dramatic by her hands casting a shadow on to Christ's cloak.

PAUL SOLMAN: Look at that.

TOM RAISSIEUR: It is a "look at that" image. This is Rembrandt taking the gauntlet and throwing it on the ground and saying to anybody, try and do this. This is drawing at its most magnificent and meticulous.

PAUL SOLMAN: A sacred image with a profane purpose as well. To further what one artist historian has called Rembrandt's enterprise, his business. That business also involved the image of the artist himself. Rembrandt did more self-portraits than anyone until Picasso.

TOM RAISSIEUR: First of all he's practicing by looking in the mirror and staring intently and concentrating. One of his students wrote about the idea of being both actor and audience simultaneously when you're practicing your art in the mirror. And that's exactly what Rembrandt is doing in these early self-portraits. Here he's dressed himself up as a dandy. He's wearing a military uniform with this big floppy collar, the lace edges. And he has long flowing hair. And so he's turning himself into a matinee idol.

PAUL SOLMAN: A matinee idol perhaps but not one who kissed up to his audience.

PAUL SOLMAN: Now, come on. This is not a congenial fellow.

TOM RAISSIEUR: I grant you it's anything but an avuncular image. He's depicting himself as the prince of painters and he has incredible confidence here. This is done in 1639.

PAUL SOLMAN: He's 33 years old here.

TOM RAISSIEUR: Yeah, he's a rising star. He isn't going to yield to anybody here.

PAUL SOLMAN: Isn't going to yield but as it happens wound up having to. Because from this point on, the Rembrandt story becomes as somber as his art. Indeed his grave images become progressively graver as life itself darkened. During the years that he reworked the image of simian for example seeing Christ presented in the temple three of Rembrandt's four children and his wife died plus the lover who succeeded her was sent to the women's house of correction. His success of etchings of the crucifix suggest a man who has become less and less worldly because they were done after the artist's imperious manner had begun alienating patrons costing him commissions forcing him into debt. At the age of 50 just a few years after his etching of Christ's entombment Rembrandt declared bankruptcy. Three years later he painted a very different sort of self-portrait which usually hangs in Washington's National Gallery.

RONNI BAER: It's truly an amazing, penetrating look at an aging man.

PAUL SOLMAN: It's him looking at himself.

RONNI BAER: And it's him looking at himself. You feel the weight of this man's life in his face -- in the sagging flesh, which is broken up into lots of different brush strokes. What I want to show you here also, you see how his hair has been scored over and over and over with the butt end of the brush into the wet paint. That's standing for individual strands of hair. He uses it much more in the lit side than he does in the shadowed side where he just uses it a couple of times. He sculpts in paint. There's a saying attributed to Rembrandt where he told the patron if you don't like the smell of paint stand further away from my paintings.

PAUL SOLMAN: Bur for all his bravado, right through the end Rembrandt has become a synonym for both art and quality not because of self-promotion but a mixture of elements you can see in the portrait of his son Titus age 14 borrowed from the museum in Rotterdam. In its details like the thumb indenting the cheek it's the work of Rembrandt the virtuoso with paint. In other passages, it's as free as a work of abstract expressionism, Rembrandt the modern. Then there's the familiar glowing contrast of light and dark, Rembrandt the dramatist and finally there's dreamy Titus himself as painted by his father, Rembrandt the loving humanist. A host of enduring identities fused together in what has become perhaps "the" brand name in art.

RECAP

GWEN IFILL: Again, the major developments of the day: An army judge ruled the commanding generals of U.S. forces in Iraq may have to testify at the trial of seven low-ranking soldiers charged with prison abuse. The Supreme Court denied patients the right to sue HMO's for malpractice in state courts. And the justices also ruled people must identify themselves when asked by police. We'll see you online, and again here tomorrow evening. I'm Gwen Ifill. Thank you and good night.

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The NewsHour with Jim Lehrer Monday, June 21, 2004