The MacNeil/Lehrer NewsHour

MR. LEHRER: Good evening. Leading the news this Monday, firefighters worked to stop the fire aboard a tanker off the Texas Gulf Coast, John Poindexter was sentenced to six months in jail for his role in the Iran-Contra affair, and the U.S. Supreme Court struck down the new law that bans flag burning. We'll have the details in our News Summary in a moment. Judy Woodruff is in New York tonight. Judy.

MS. WOODRUFF: After the News Summary [FOCUS - FLOATING INFERNO] the super tanker on fire and spilling oil in the Gulf of Mexico is our lead focus. The Coast Guard commander in charge of the salvage effort will bring us an update. Next the Supreme Court decision to knock down a flag burning ban [FOCUS - BURNING ISSUE]. Two members of Congress who disagree about the ban will join us, Republican Henry Hyde and Democrat Lee Hamilton. Then [FOCUS - DAY OF RECKONING] Hyde and Hamilton stay with us to consider today's Iran-Contra prison sentence handed down for former Reagan White House aide John Poindexter. They are joined by two legal experts. Finally Fred De Sam Lazaro reports [FOCUS - CONDUCT UNBECOMING?] on what Minnesota constituents think of embattled Senator David Durenberger on the eve of hearings by the Senate Ethics Committee.NEWS SUMMARY

MS. WOODRUFF: Firefighters struggled to put out a new fire on board an oil tanker in the Gulf of Mexico today. The Norwegian ship is located 57 miles Southeast of Galveston, Texas. The fire threatens to sink the tanker which is carrying 38 million gallons of oil, three times more than was spilled by the Exxon Valdez in Alaska. The fire began Saturday with a huge explosion. Since then there have been several more. Two crew members died; two others are missing. Meanwhile, the Coast Guard is trying to prevent another oil spill near Cape Cod, Massachusetts. The cruise ship Bermuda Star ran aground yesterday. Passengers and crew were safely evacuated, but a 90 foot tear in the bottom of the ship threatens to spill over 100,000 gallons of diesel fuel. Jim.

MR. LEHRER: John Poindexter was threatened to six months in prison today. President Reagan's former National Security adviser became the first Iran-Contra figure to receive a jail term. He was convicted in April on five counts of lying to Congress and destroying documents to cover up the Iran arms deal. Federal Judge Harold Green said he wanted to show that white collar criminals and public officials were not above the law. He could have sentenced Poindexter to as much as 25 years. Poindexter had no comment after hearing the sentence. The prosecutor, Dan Webb, spoke to reporters outside the courthouse.

DAN WEBB, Poindexter Prosecutor: We recognize that in these types of cases sentencing is a very difficult matter, however, unfortunately the crimes committed by John Poindexter were very serious ones. They actually undermined the ability of our government to function and, therefore, we believe that the sentence imposed today by Judge Green is a fair and proper sentence.

MR. LEHRER: We will have more on this story after the News Summary.

MS. WOODRUFF: The Supreme Court today overturned Congress's new flag burning law. The law was passed last year after the court ruled that flag burning was a form of expression protected the first amendment. Today's five to four decision reaffirmed that stand. Writing for the majority, Justice William Brennan said, "The government may not prohibit the expression of an idea simply because society finds the idea, itself, offensive or disagreeable." Following the decision, Pres. Bush said that he would call for a constitutional amendment to replace the overturned law.

PRES. BUSH: I think some of us said ahead that this legislative approach would not be upheld and apparently, the court has decided that, so I will continue to press for what I strongly believe is in the best interest of this country.

MS. WOODRUFF: In another decision today, the Supreme Court ruled that the federal government has precedence over a state governor when it comes to ordering National Guard troops into training exercises. The unanimous ruling rejected a challenge by Minnesota's Republican Governor, Rudy Perpich. Other governors, including Democrat Michael Dukakis of Massachusetts, had sided with Perpich. The case developed from the use of state National Guard troops on exercises in Central America.

MR. LEHRER: Two white men involved in the killing of a black teen-ager in New York City last summer were given the maximum today. Joseph Fama was sentenced to thirty-two and two-thirds years to life in prison on murder charges. Keith Mondello was given five to sixteen years on lesser charges of discrimination and inciting a riot. The August 1989 incident in the Bensonhurst neighborhood of Brooklyn heightened racial tensions in the city.

MS. WOODRUFF: The U.S. and Mexico today agreed to hold free trade talks. The two countries hope to begin the talks by the end of the year. The goal is to lift all trade barriers. The move came at a meeting last night between Pres. Bush and Mexican Pres. Salinas. Mexico is the United States' third largest trading partner after Canada and Japan.

MR. LEHRER: Israel finally got a government today. The parliament approved a new coalition headed by acting prime minister Yitzhak Shamir. The new coalition includes several right wing and religious parties. It does not include the more liberal Labor Party which supports a United States plan for peace talks with the Palestinians. In a speech during tonight's debate, Shamir promised to expand Jewish settlements in the West Bank and Gaza and he criticized the U.S. for continuing its talks with the Palestine Liberation Organization. The PLO issued a new statement today about last month's guerrilla raid on an Israeli beach. The statement said, "We are against any military action that targets civilians, whatever form it may take." A State Department spokesman said that did not constitute the condemnation the U.S. wanted from the PLO. The administration is considering cutting off talks with the PLO over the incident.

MS. WOODRUFF: Soviet Pres. Gorbachev has agreed to meet with the leaders of the three Baltic republics, Estonia, Latvia and Lithuania. That word came from government spokesmen in two of those republics. They said the meeting will take place tomorrow. It will be their first joint meeting ever. The Baltic presidents have been working together to push for independence. In Washington, East German Prime Minister Lotar Demaziere met with Pres. Bush. It was the first time an East German leader ever visited the White House. Pres. Bush said the meeting illustrates the magnificent changes taking place in Europe.

MR. LEHRER: Reform to Communists won the elections in Bulgaria this weekend. They were the first free elections there in 40 years. Early returns show the Socialist Party which changed its name from the Communists winning by a big margin. More than 60,000 opposition supporters rallied in the capital today to protest the results. They claim the election was fraudulent. They chanted, "We are not going to work for the Reds." There was also an election in Peru Sunday. The winner was the son of Japanese immigrants, Alberto Fujimori. He is an agricultural engineer who was virtually unknown when the campaign began. He defeated the country's most famous novelist, Mario Vargas Josa.

MS. WOODRUFF: That's it for our summary of the day's news. Just ahead on the Newshour, the oil spill in the Gulf of Mexico, the Supreme Court decision on flag burning, a prison term for John Poindexter and Minnesotans consider a Senator in trouble. FOCUS - FLOATING INFERNO

MS. WOODRUFF: First up tonight the oil tanker called Mega Borg that is still stranded and ablaze in the Gulf of Mexico. Over the weekend a series of on board explosions ripped a hole in the ship and left it leaking oil 60 miles southeast from Galveston, Texas. The stern of the ship slipped under water this afternoon which a Coast Guard spokesman said raises the danger of its sinking. Lt. Commander William Prosser is the Command Center Coordinator of the Marine Safety Division in New Orleans. He is assisting the Coast Guard with the salvage effort. Commander Prosser first of all what caused the explosion and fire on Saturday.

LT. COMMANDER PROSSER: The exact cause we really don't know. We are anticipating in the engine room there is possibly a fuel leak or something with the engine that could have possibly caused an explosion. There has not been an investigation into this to say exactly what the cause is at this time.

MS. WOODRUFF: Well we just noted that the stearin, the rear of the ship has now slipped under water. Earlier today we were told that the ship has stabilized there was no danger of it sinking. Now we are told that has changed. What exactly is the situation?

LT. COMMANDER PROSSER: Well at the present time she has taken on a little more bunker or water or cargo in the aft compartments. The Coast Guard still feels because it is a tanker ship and it is loaded with product there has been a shift in cargo. There is plenty of buoyancy and the vessel at this time will stay afloat and we don't see an immediate problem for there to be a sinking.

MS. WOODRUFF: But that was what said earlier today before the stern slipped under water?

LT. COMMANDER PROSSER: We have to be optimistic when we go into these things.

MS. WOODRUFF: Did you want to add something to that?

LT. COMMANDER PROSSER: No I just wanted to say that we do feel that it is still a very controlled situation and that we will be able to salvage the vessel if things do not go according to our plans.

MS. WOODRUFF: The tanker has 38 million gallons of oil, light crude oil on it. How much of that has spilled?

LT. COMMANDER PROSSER: Approximately at this time it has been estimated maybe about 14,000 gallons have spilled.

MS. WOODRUFF: How do you know?

LT. COMMANDER PROSSER: They just do an estimate of the size of the slick and the sheen that is going off the stern of the vessel. Right now we have a slick that is approximately 3 miles long and a sheen that goes out about 6 miles and the further it goes just using those calculations is saying what the size of it is at this time.

MS. WOODRUFF: Tell us how the effort to put out the fire is going.

LT. COMMANDER PROSSER: They have four fire fighting g vessels on the scene and Smith America is the Organization that is coordinating this. They are trying to line up all four vessels that will have fire fighting foam and monitors to be in the same location so that once they start the fire fighting with the foam all foam actions will be in a position to cover and smother the flame. It is a process that will take 3 to 5 hours to complete to make sure that the fire is out and make sure the hull temperature and the steel temperature of the ship has gone down.

MS. WOODRUFF: Has that started yet?

LT. COMMANDER PROSSER: It should have started at this time. originally it was scheduled to start at 15 or 16 hundred this afternoon.

MS. WOODRUFF: Which was late this afternoon. Why wait until now to begin to put the foam on the fire to put it out. I mean this all started two days ago?

LT. COMMANDER PROSSER: Yes it did. It is important to have the proper equipment so when you start fighting a fuel oil type fire you have to have equipment that is going to work and work in mass volume. If you don't do that you are liable to increase a problem. So it is best to maintain the stability of a situation until all the equipment necessary to do the fire fighting and do it properly is on the scene and in place and that the specialists have had an opportunity to do all the evaluations and look at all the probabilities.

MS. WOODRUFF: I was ready today all the wire services reported that there was a delay in getting the foam there. One Officers was quoted as saying that he wished it had been there at least a day earlier?

LT. COMMANDER PROSSER: We wish that it had been there a day earlier but shipping, organization and the statistics of getting and the logistics of getting things in one location out at sea and the timing is very critical.

MS. WOODRUFF: But I also read that a great deal of it had to come from the North Sea. Is that correct? That is wasn't available in the Gulf of Mexico?

LT. COMMANDER PROSSER: That is true. Most people deploy and set up deployment in areas of greatest probability and the greatest probability for the type of disaster of this type occurring is in the North Sea. And that stuff had to be relocated in to the Gulf to be able to care of the situation.

MS. WOODRUFF: So there was nothing available in that area?

LT. COMMANDER PROSSER: Not enough to be able to handle the job properly.

MS. WOODRUFF: I also read that were special pumps and experts. people who had to be flown in from the Netherlands. There was no one in the area of the Gulf who could?

LT. COMMANDER PROSSER: We had company representatives who work right out of Houston but what we really needed to bring in were the special nozzles that you hook up to the fire boats to be able to put the foam out in the proper percentage and the proper rate to be properly able to do the job. It goes out in a special volume and you had to have special nozzles to carry the foam.

MS. WOODRUFF: How much better off would you have been if had all the equipment and all the people and the foam, the chemicals that you needed as soon as possible on Saturday or Sunday?

LT. COMMANDER PROSSER: I really can not give an honest answer to that because it is all speculation but the sooner that you can fight a fire, the sooner that you are equipped and organized the better it is.

MS. WOODRUFF: Can you explain to us again why you are not that concerned that the ship might sink?

LT. COMMANDER PROSSER: We have our concerns but this is a tank vessel. It is used to being loaded with product with fuel and she has a lot of tanks and she has a lot of buoyancy and to our knowledge right now those tanks are holding up and the cargo is holding up and we just had a shift of cargo, apparently, from some of the aft tanks to engine room and pump room which would cause the list to take place, As long as the other tanks do hold up we feel the vessel has plenty of buoyancy and we stay afloat.

MS. WOODRUFF: What is your biggest concern. I rad today that if it did sink the oil might solidify. Is that considered a less of a disaster than if it burns for several days. Give us a list of what the worst scenarios are?

LT. COMMANDER PROSSER: The real worst scenarios if the vessel should break open and discharges its entire cargo. If the vessel should sink and not break open than we have to look at all the options going in and emptying all the tanks and then determining at that point working through our scientific community and engineering to see what just will happen. It is hard to speculate. We are hoping that we can get this fire out. Stabilize the vessel with moving the cargos back and forth once the fire is out and she will trim out and that will stop the discharge.

MS. WOODRUFF: But I also hear you saying that you don't have that much experience in this area with this type of fire is that right?

LT. COMMANDER PROSSER: Right now on the scene there is the best experience with Smith America who have fought many fires like this. They are on the scene they are under control and they are the ones setting the pace and have been. So the pros are on the scene and it is under control and they are accomplishing what they want to accomplish in keeping control of the situation.

MS. WOODRUFF: And just once again once the spraying of the foam begins how long will it take before we know that it is successful?

LT. COMMANDER PROSSER: Probably 3 to 5 hours to get control of the fire to get the fire out and get the steel and metal down to a safe temperature.

MS. WOODRUFF: Commander Prosser we appreciate your being with us and we wish you luck.

LT. COMMANDER PROSSER: Thank you.

MS. WOODRUFF: Jim.

MR. LEHRER: Still to come on the Newshour tonight the flag burning decision, the sentencing of John Poindexter and the trials of Senator Durenberger. FOCUS - BURNING ISSUE

MR. LEHRER: Now the Supreme Court's decision to again strike down a law banning the burning of the American flag. The court threw out a Texas law last year. That prompted Congress to pass a federal law, the one invalidated today. Some members of Congress argued before that a constitutional amendment was the only way to go. Today's action set off an inevitable replay of that debate. Here are excerpts from statements made today on the floor of the Senate.

SEN. ROBERT DOLE, Minority Leader: I happened to be out Arlington Cemetery on Memorial Day and some stranger walked up to me and said, Senator, why don't you bring the flag burners out here. Maybe they would get the message if they were here on Memorial Day and over each marker there was an American flag and watch the changing of the guard and stay there for a couple of hours and notice all the different organization involved in placing wreaths at the tomb of the unknown soldier and just sort of watch the people from all over America, from all walks of life, rich, poor, black, brown, white, whatever, from all over America, there on Memorial Day, and the centerpiece is the American flag. So, Mr. President, that's what the flag debate has been all about. That's what the flag debate will continue to be about and that's why we need a constitutional amendment. The American people demand no less. In response to Jennifer Campbell, who was one of the defendants in the flag burning statute case, she says, I feel great for all the people who told me protesting didn't do anything, I just proved them wrong; for once, the system may have worked. Well, it's a strange way the system may have worked. The court had no choice but to strike down this unconstitutional statute, but I'll place my money on the young men and young women who serve in America's armed services and the rest can place their money on the Jennifer Campbells and the others who were involved in this latest flag desecration.

SEN. GEORGE MITCHELL, Majority Leader: No useful purpose is served, other than to gain temporary tactical advantage to suggest that this agreement on the issue of a constitutional amendment involves choice between those who burn the flag and those in the armed services. The question before us is whether or not after 200 years in which the American Bill of Rights the most concise, the most eloquent, the most effective individual liberty in all of human history is to be changed for the first time.

SEN. ORRIN HATCH, [R] Utah: This is an important issue. This is not some inconsequential thing. Nor is it a violation of the Bill or Rights, nor is it a trampling on the Bill of Rights. It's simply by passing this constitutional amendment, simply a way of saying, look, there are certain parameters we're not going to let you go beyond, and we do that all the time constitutionally and we do that all the time in our criminal law. If you're going to burn our flag, you're going to pay a price for it, and frankly, I don't think that's going to trample on the Bill of Rights in any way, shape or form. I think what it's going to do is strengthen the resolve of good people in this country to respect our flag even more and stop those who don't respect anything from desecration of our nation's symbol.

SEN. PATRICK LEAHY, [D] Vermont: We've had now three or four people in the last year who've gone, out of this country 255 million Americans, who have gone out to seek television cameras to burn flags in front of them, and somehow we must stop everything we're doing in this country to debate the first amendment in 200 years to the Bill of Rights because of that. Some who would do that would rather we debated that than debate the fact that we have a national debt that has mortgaged our children and our children's children. Some would rather we debated that than debate the fact that the United States is falling behind Japan and Europe in our competitiveness, in our innovation. The flag is a very valued and hallowed and honored symbol of our nation. But I for one Senator would rather debate those issues that make us great as a nation, so that when we look at that symbol flying over the capital or flying over my own home in Vermont, I can say that flag as a symbol stands for a great nation, the pre-eminent nation in the Democratic world.

MR. LEHRER: Now we hear from two members of the House with different views on the flag issue. They are Congressman Henry Hyde Republican of Illinois and Congress Lee Hamilton Democrat of Indiana. They are with us from Capitol Hill. Congressman Hyde you are going to support the push for a Constitutional Amendment is that correct.

REP. HYDE: That is correct.

MR. LEHRER: Why sir?

REP. HYDE: Well I think that we need one. The statues have all been found to be unconstitutional. I think that the American people recognize that the flag itself is a monument. I think that if you look at the Iwo Jima Memorial in Arlington you understand what the flag means to people. Too many people have died and the families have a flag that has draped the casket as a reminder of the sacrifice that their families have given for this country. I think that the flag is a very important symbol. As I say it is a monument above and beyond simply symbolic free speech and I believe that the people want the flag protected from desecration and they want monuments and places of worship and I think that we are going to pass an amendment to the constitution despite Senator Leahy and Senator Mitchell and the rest.

MR. LEHRER: Congressman Hamilton do you agree that the flag is a monument or a place of worship or similar to them?

REP. HAMILTON: All of us revere the flag and respect it. I will not support a Constitutional amendment. I do not think the problem is of such a magnitude that we ought to tamper with the First Amendment. Right at the bedrock of what this country of ours is all about is the Bill of Rights and the First Amendment, the free speech amendment which perhaps above all others symbolizes that freedom. It does not seem to me that the problem is of sufficient magnitude. Only a few cases and all of these people as Senator Leahy said that we should tamper with it create a political exception to the first Amendment. We must not diminish the very freedom that the flag symbolizes.

MR. LEHRER: What is the urgency of this Congressman Hyde as Mr. Hamilton and Senator Leahy said on the floor of the Senate today there has only been a couple of cases involving this sort of thing?

REP. HYDE: Well I think the symbolic meanings have great importance to people. I know that some would subordinate it to the economy or to Japan or things like that but if it is important enough to die for, if the ideals that are embraced in that flag are significant and free speech certainly is one. Lee Hamilton talked about tampering with the Constitution. The Court has tampered with the Constitution by saying that desecrating flag is free speech and is protected. Now it was a 5 to 4 decision so it is not a big call. This is very close and very narrow. Free speech has always been limited by obscenity, yelling fire in a crowded theater. There is no absolute right to free speech and many of us believe that the flag belongs with the other monuments of this Country. We owe it to all the people who died for our country to join them in reverence to our flag and I think that we will get one.

MR. LEHRER: Congressman Hamilton what about that point. Senator Dole made the same point in the Senate that this Constitutional Amendment was owed to those who died and gave their lives in military service in this country.

REP. HAMILTON: All of us of course not only respect the flag but we respect all those who fought for it and died for it and that flag is an enormously important symbol of what this country is all about. But what does the flag stand for? Well certainly it stands for freedom. We ought not to dilute freedom and that is exactly what you do with this constitutional amendment. We are not talking about obscenity here. We are not taking about the emergency situation of yelling fire in a Theater. If a constitutional amendment is passed and if Congress does in fact pass a statute then you are making a political exception to the first amendment. You are saying certain kinds of political expression are okay. The next question is what other kinds of political expressions will be okay. This Amendment has served us for two hundred years. It has prospered, freedom has prospered. Why take a chance with that to deal with only a handful of cases. We protect those even though we don't like what those people are saying.

REP. HYDE: Insults on a synagogue would be a terrible thing and we wouldn't countenance it. This is of the same nature.

MR. LEHRER: Gentlemen we understand the disagreement and the debate and don't go away. FOCUS - DAY OF RECKONING

MR. LEHRER: And now to another Washington decision of this day, the one by Judge Harold Green to send former National Security Adviser John Poindexter to prison for six months. Poindexter was convicted of lying to Congress to conceal details of the Iran- Contra affair when he was Pres. Reagan's national security adviser. He was the highest government official brought to trial in the Iran-Contra scandal and the only one sentenced to prison. There are suggestions it closes the book now on the whole affair 3 1/2 years and three major investigations later. Some say the closing was long overdue. Others say it is still waytoo early and a way too gentle a closing. We explore those and other Iran-Contra questions now with Congressmen Hamilton and Hyde, two House members who played key roles in the Congressional Iran-Contra investigations. Congressman Hamilton chaired the House Select Committee. Congressman Hyde was a member of that committee. Also here are two people who have written extensively about the Iran-Contra affair. Harold Koh is a professor of law at Yale Law School and the author of the book "The National Security Constitution Sharing Power after the Iran-Contra Affair". Gordon Crovitz is a legal columnist and assistant editorial page editor of the Wall Street Journal. Mr. Koh first, did John Poindexter deserve to go to jail?

HAROLD KOH, Yale Law School: Yes, he did. I think justice was served by this sentence. In fact, if anything, I think the sentence may have been a little bit low. He could have received up to five years in prison and a $1 1/4 million fine. Had he committed his crimes a year and a half later, than under sentencing guidelines that are now in effect, the recommended sentence would have been as high as twenty-one to twenty-seven months. So I think Judge Green showed him quite a bit of mercy in giving him six months.

MR. LEHRER: Mr. Crovitz, do you agree, mercy was shown John Poindexter today?

GORDON CROVITZ, Wall Street Journal: Well, no, I don't agree. The six month sentence I think is no reason for anyone to gloat. I think what we ought to be worried about instead is what this means about the criminalizing of policy differences in Washington. What we had here was a member of a conservative administration, John Poindexter, in a disagreement with liberal members of Congress over primarily our relationship with Nicaragua and the Contras. He testified, for example, the Boland Amendments were being followed in letter and in spirit. There's a very good case to be made that he was telling the truth, that the National Security Council was not covered by the Boland Amendments and in fact, Lawrence Walsh never established that the Boland Amendments did apply to the National Security Council, or if they did, that they would have been constitutional. I want to make a point here that --

MR. LEHRER: So in other words, if he committed a crime, it was a political crime not a legal crime, in your opinion?

MR. CROVITZ: That's right. And it's not the sort of crime that I think criminal courts ought to be dealing with. There was an event in 1963, for example, right after the Cuban missile crisis, there was a deal between the Kennedy administration and Kruschev to remove Jupiter missiles from Turkey in exchange for the Soviets backing down on the Cuban missile crisis. Robert MacNamara, who was Secretary of Defense, went to Congress and he testified, and he said, "I am not only unaware of any agreement. It is inconceivable to me that our President would enter into a discussion of any such agreement." "Moreover," Sec. MacNamara said, "there were absolutely no undisclosed agreements associated with the withdrawal of the Soviet missiles from Cuba. Now in a recent book with George Bundy, another Kennedy aide called this lie most justified deceit, and I think he may well be right. Sec. MacNamara should not be indicted or convicted or sent to jail for six months; neither should John Poindexter.

MR. LEHRER: Mr. Koh, how do you respond to that, this is a political crime, not a legal crime?

MR. KOH: Well, I think that's akin to saying that Richard Nixon's refusal to release the tapes was an attempt to criminalize a political dispute or a policy dispute. The fact of the matter is that the crime here was clear and there was no dispute about whether it was a crime, lying to Congress. One branch of government can't lie to another one and still have our government function the way that it's supposed to. Congress knew that when it passed the law, the President signed that law and I think Mr. Poindexter knew it was a crime when he violated that law.

MR. LEHRER: But what about Mr. Crovitz's point that there are times sometimes in the course of human events, conducting foreign affairs in this country, where it isn't necessary to do that sort of thing?

MR. KOH: And I think those decisions are taken into account in a decision to prosecute and also in a decision on how high a sentence should be imposed. But I think it's very clear here that bargains were violated. The two bargains were we don't trade arms for hostages and that we don't fund the Contras, and an additional bargain was that the President would tell Congress what he was doing. All of these were violated by what went on.

MR. LEHRER: And that's a legal, that was a legal bargain, not a political bargain.

MR. KOH: Yes. I think perjury, false statements, obstruction of Congress are crimes.

MR. LEHRER: Let's bring the Congressmen in. Congressman Hamilton, how do you feel about John Poindexter and the sentence that was given him today?

REP. LEE HAMILTON, [D] Indiana: I think the sentence was a fair sentence. It was a difficult judgment for Judge Green. On the one hand, Admiral Poindexter acted from the best of motives, loyalty to Pres. Reagan, patriotism. He certainly has had a marvelous record in the United States Navy. That has to be taken into consideration. On the other hand, he violated some criminal statutes in the judgment of the jury. There were five counts. The jury found him guilty of all of those. As Judge Green said, these were serious offenses, and so he had to balance these factors. He didn't slap him on the wrist. He didn't throw the book at him. He didn't give him a huge fine. Adm. Poindexter, my understanding is, is not a wealthy man. But he said that what he did was serious enough that he had to show some deterrence, some indication that these things just cannot be done in our system of government. I thought it was a fair and balanced decision by the judge.

MR. LEHRER: Congressman Hyde, what about that deterrence question? Judge Green said that public officials need to be told in no uncertain terms that they are not above the laws of the land.

REP. HENRY HYDE, [R] Illinois: Well, I think that's true and to that extent, it probably was a good sentence. But from another perspective and the one that I adhered to, I think it was very unfair. I think you have to put these things in historical context. Now Mr. Crovitz has quoted to you when Sec. MacNamara deliberately lied to Congress, and that was looked upon as a fine thing. There were other times in recent history, Arthur Schlesinger, Jr., is quoted in a book by Peter Widen on the Bay of Pigs, advocating Dean Rusk's plan to have some lower person than the President lie and if things go wrong, offer his head. These things do happen. They're very unfortunate, but why is it only Adm. Poindexter that has to go to jail? Now he has suffered enormous financial losses. He may well lose his pension. I don't know whether that's true or not. But that's an awful way to end 33 years of distinguished service to his country. He did this for no personal gain, but out of a sense of patriotism. Yes, it was wrong. Congress was misled, and I think the Admiral did mislead us. But his motives, his lack of personal gain, the fact that others have done this before, the political nature of the controversy, his mistrust of Congress keeping a secret, plus his 33 years of distinguished service, ought to have gone into the equation, and it would seem to me a thousand hours of community service would have been an adequate deterrent.

MR. LEHRER: Mr. Koh, what about this question why Poindexter -- none of the other Iran-Contra figures were given jail time and you've heard the other examples both from Mr. Crovitz and Congressman Hyde that nobody else has ever gone to jail for doing, for committing the crimes apparently that Mr. Poindexter was convicted of?

MR. KOH: Well, I think you made the point in your report Poindexter was the highest ranking official involved in the national security crisis that was caused by the Iran-Contra affair. He himself said, "The buck stops with me." I think part of the leniency of North's sentence, which I thought was too lenient, was that he may have been ordered to do what he did by higher ups. Well, the highest higher up was Poindexter.

MR. LEHRER: Do you believe generally, Prof. Koh, that the whole Iran-Contra thing was serious enough that other people should have gone to jail as well as Poindexter and the only difference should have been the amount of the sentences, rather than they did or didn't go?

MR. KOH: Well, I think there are two issues in the question of what happened and the question of in foreign policy who decides. I think that the question of what happened is pursued by this investigation and others and I think the main issues have largely been put to rest. But I think the broader question of who decides these issues in foreign policy, the President's men acting alone secretly without congressional oversight or presidential oversight or the branch of government working together through the systems of checks and balances, that's the issue that really has not been addressed.

MR. LEHRER: Do you agree with that, Mr. Crovitz, that issue is still on the table?

MR. CROVITZ: I do and I think that's one reason it was such a terrible mistake to criminalize this matter. I think we're all left with a very peculiar and incorrect view of constitutional view as it applies to separation of powers and foreign policy. Throughout the history of this country we have sent either troops abroad or war material abroad more than 200 times and 2/3 of those times, the President has done it entirely unilaterally without any prior information from Congress or any treaty obligation and that extends from Jefferson sending the Navy to get the barberry pirates to Pres. Reagan raiding Libya. The Constitution wanted an executive branch that could act with what the founders called secrecy, energy and dispatch to defend the national security. Congress is a different kind of institution. It mulls over policies. It thinks about them. It takes time. The executive branch is very different. It's set up differently. It has different responsibilities. They are separative powers. They are not the same powers and I think if you want to go back to history, we ought to take a look at what FDR did in 1940. He sent 40 battleships to Britain at a time when Congress had established neutrality by law. I don't think anybody wants to go back and indict Pres. Roosevelt for what he did.

MR. LEHRER: Congressman Hamilton, what's your view of this as to what's still on the table in this issue of the relationship between the President and Congress vis-a-vis Iran-Contra?

REP. HAMILTON: The first pointI would make is that Adm. Poindexter was not convicted because he advocated a policy. We didn't criminalize a policy here. Adm. Poindexter was convicted because he violated statutes, criminal statutes. He misled the Congress. There's a law against that. There's a penalty that attaches when you violate that law. He was accused of falsifying documents. There's a law against that with a penalty. That's what he was convicted of. He was convicted of lying to the Congress and misleading us. Those are very specific acts which violate specific criminal statutes. He was not subject to his fine and his sentence because he advocated a policy.

MR. LEHRER: But do you think the policy differences, the policy differences obviously led to his violations of the law, right?

REP. HAMILTON: Well, I think one of the lessons that emerges out of all this is that just because you support a certain end or a certain objective, no matter how worthy that may be in your own sight, it doesn't mean that you can just use any means to achieve that end. You have to use means that comply with our criminal statutes and comply with the constitutional processes of the United States Constitution.

MR. LEHRER: I was just going to ask Congressman Hyde if he agreed that's the message of Iran-Contra.

REP. HYDE: Well, I do agree with Lee in what he has said, but I think there is more to be said about it. I think when you have a conservative President with a foreign policy agenda and you have a liberal Congress whose agenda is completely in the other direction, you have a formula for sparring and arm wrestling and gridlock. And that's really what we had unfortunately. But I think we've established now that lying to Congress is a crime. If we can establish that Congress lying to the people is a crime it may have been worth it. I'm not sure.

MR. LEHRER: Congressman Hamilton.

REP. HAMILTON: Well, there are many statements made by Presidents and Congress and they all have to be evaluated. And I can't pass judgment on all of them. The fact is that in this case, and the jury has decided it, most of the American people have accepted it. The Congressional committee's accepted it. Mr. Poindexter lied to the Congress, misled us, falsified documents, and you cannot do those things without penalty in the American system.

MR. LEHRER: Mr. Crovitz, do you object to that message being given this way through a court of law by a judge in a sentence?

MR. CROVITZ: Yes, I do. In our democracy, policies are supposed to be determined by voters and not by jurors in a criminal trial. I think we can't let this pass without referring to the means by which Congress criminalizes acts. John Poindexter was not prosecuted by a normal federal prosecutor; he was prosecuted by a special prosecutor, an independent counsel, Lawrence Walsh, who has now spent somewhere between 28 million and 100 million dollars in all of the prosecutions that he has made in the Iran-Contra case. Now Congress also called John Poindexter and Oliver North in to testify to Congress, contrary to their fifth amendment right, they were then tried in a criminal courtroom in which some members of Congress, including Lee Hamilton, testified against them. And I think what we have here is a one, two, three punch by Congress against a high ranking member of the executive branch in a court of law and not in a political arena.

MR. LEHRER: Congressman Hamilton, is that true?

REP. HAMILTON: Well, I think he'd have a very different opinion if Poindexter had lied to him. Mr. Poindexter said to me that they were not assisting the Contras, that the Boland Amendment had been fully complied with in spirit and in fact, and of course that turned out to be not correct. You cannot conduct the foreign policy of the United States, which presupposes shared powers between the executive branch and the Congress, on the basis of lying to one another.

REP. HYDE: It's a good thing the statute of limitations has passed on the Bay of Pigs; that's all I can say. We didn't have any prosecution there because we had Democrat liberals in charge of the White House and Congress.

REP. HAMILTON: May I make one other point?

MR. LEHRER: Yes, sir.

REP. HAMILTON: And that is a lot is said about the amount of money that the independent prosecutor has put forward and all the rest. All of us would agree that it would have been better if these misdeeds had not occurred, but once misdeeds do occur under our system, then Congress is going to investigate, as it did here, grand juries are going to meet, prosecutors are going to prosecute, judges and juries are going to judge. You cannot call off the system in the middle of the game and say we're going to put a cap on the amount of money we're going to spend to achieve justice. The culprit here are those who committed the misdeeds, not the system, not the judges, not the juries, not the Congress.

MR. LEHRER: Do you agree with that, Mr. Koh, that the system worked in Iran-Contra?

MR. KOH: No, I don't think so. I couldn't agree more with the point that foreign policy should be made by our elected officials. What happened here was that unelected officials, Poindexter, North, and their subordinates, not only nullified the acts of our elected officials, the Congress and the President, but then covered it up, and didn't let anybody know about it. Now it seems to me that the ball is really back in the court of Congress. There's a limit to what can be done through criminal prosecution. You can punish the guilty. But for the broader issue of restoring a system of checks and balances in foreign affairs, that's the job of Congress, not just to investigate, but then to legislate based on what they have discovered through their investigations.

MR. LEHRER: But what about his point, what about Congressman Hamilton's point that the system worked once the misdeeds were uncovered, and that's why we're sitting here today talking about John Poindexter having been given a sentence today?

MR. KOH: Well, I think the guilty have been punished, some perhaps not as severely as they should have been, but the broader problem of enforcing a system of shared power in foreign affairs through laws that support a system of balanced participation by the branches in decision making has not been addressed. After Vietnam, there were many laws which were designed to deal with this issue. And after the Iran-Contra affair, there's been legislative silence. So I think that the system hasn't worked. The Congress's task is still unfinished.

MR. LEHRER: Mr. Crovitz, how do you feel about that?

MR. CROVITZ: Well, I think the lesson from this is that we must never again criminalize what is essentially a policy difference; if we are going to have a new regime under which any misleading statement by say a member of Congress to a President will be resolved in a court of law, we're going to have a lot of Congressmen, those, for example, who agreed to cut spending in the first Reagan term in exchange for a tax increase that never occurred, the cuts in spending that never occurred, are we supposed to indict people for that, are we supposed to indict people who now promise that the pending civil rights bill will not become a quota bill if it turns out that it does, I don't think so.

MR. LEHRER: Is that where this is leading, Congressman Hamilton?

REP. HAMILTON: I don't think it's leading that way at all. We're going to have policy difference on these very difficult issues. A lot of statements will be made back and forth. That's not what we're talking about in the Poindexter case. We're talking about a person who specifically told Congress something that wasn't true on an important policy matter in very clear violation of the statute, not by my judgment but by the judgment of the jury. You can't ignore all of that. You cannot just dismiss it and say the criminal law doesn't matter, that it's irrelevant. We are not meeting here because Mr. Poindexter advocated a policy that the United States Congress didn't like. He did that but that's not the reason he was convicted. He was convicted because he did specific acts that violated specific criminal laws. It's a job in that circumstance of a prosecutor to prosecute and a judge and a jury to judge.

MR. LEHRER: Congressman Hyde, is that what happened?

REP. HYDE: I don't disagree with Lee on that. I do think that Congress was misled and I think that is not the way to conduct a foreign policy. My quarrel is the fact that the motives behind all of this scenario ought to be weighed in the balance. I think this was in the environment of a political struggle between those who despised Mr. Reagan and his policies and those who went the extra mile in an effort to advocate his policies and all of this got out of control, and I think their failure to get Ronald Reagan and a smoking gun then resolved itself into getting Poindexter and North and the rest. Now I don't absolve this for what they did. I think Congress was misled and it was wrong, but I do think sending Adm. Poindexter to jail is equally wrong.

MR. LEHRER: All right. We have to leave it there, gentlemen. Thank you all four very much. FOCUS - CONDUCT UNBECOMING?

MS. WOODRUFF: Tomorrow the Senate Ethics Committee begins public hearings into the conduct of Minnesota Sen. David Durenberger. Sen. Durenberger's personal finances are under investigation, in particular a book publishing deal which may have circumvented Senate rules on outside income. Durenberger has denied his actions were illegal, but back home in Minnesota, his approval rating has plummeted. We have this report from Fred De Sam Lazaro of public station KCTA-Minneapolis-St. Paul.

MR. LAZARO: For a Senator dogged by ethics investigations and the intense media spotlight of Washington, there is perhaps no friendlier refuge than Hutchinson, Minnesota, population 9,000, no warmer audience than Hutchinson's Optimists Club. For David Durenberger, speaking appearances like this one to discuss health care issues are a means to get away from a serious career crisis, also a means to manage it, to demonstrate that his Senate duties are unaffected by his personal problems about which he even attempted some humor.

SEN. DAVID DURENBERGER, [R] Minnesota: [Speaking to Group] We had a nice group of people in Worthington at the community center. I noticed right in front of me was a table with two elderly gentlemen, and the one who turned out to be 88 years old, you know, put his hand up like this. He said, "My advice is you don't write any more books until after your term is over with." And he said, "And now let me tell you this is a really good paper you put together here on all of these health issues." And he said, "This is the kind of stuff I want you to be workin' on."

MR. LAZARO: The point Durenberger was making is that the two books he's written have been about troubles facing the nation's health care system. The point his constituent was making is that the book deals have landed Durenberger in deep trouble. The Senate Ethics Committee has found "substantial credible evidence" that during 1985 and 1986 Durenberger exceeded limits on speaking honoraria by over $100,000. Senate rules restrict such income to about a third of a member's annual salary. So Durenberger, whose salary at the time was $75,000, should have earned no more than about $26,000 a year in speaking fees. Allegedly, he disguised speaking engagements as book promotions, routing the reimbursement through his publisher. Other allegations include the use of Senate space for book promotions, using a limousine provided by lobbyists and converting a $5,000 campaign contribution to personal use. [HUMPHREY AD]

MR. LAZARO: Some of the allegations were made two years ago by Durenberger's Democratic opponent, Hubert Humphrey, III. The Senator brushed them off as election year shenanigans, a view that went mostly unchallenged by the media. [DURENBERGER AD]

MR. LAZARO: In a traditionally Democratic state, one that voted for Carter, Mondale, and Dukakis, Republican Durenberger easily defeated Humphrey, son of the patron saint of Minnesota Democrats.

WYMAN SPANO, Political Analyst: They've had a very independent image in this state, you know, and on issues, Democrats and Republicans thought of him as being a very close not close to Reagan, you know, often in trouble with the administration because he was voting the wrong way on this or that and often voting with more Democrats, that whole sense of this is our guy, this is an independent kind of guy out there.

MR. LAZARO: Veteran Democratic Political Analysts D.J. Leary and Wyman Spano edit a weekly newsletter called Politics in Minnesota.

D.J. LEARY, Political Analyst: He was regarded in most of the polls by a lot of Democrats as a pretty good Democrat. [DURENBERGER AD]

MR. LAZARO: Although a Republican in a state that has traditionally elected Democratic Senators, Durenberger seemed to have the right attributes for political success. Aside from a moderate voting record, he had a rural middle class upbringing most Minnesotans identify with and accomplishments they could be proud of like law school and civic activism. His approval ratings were as high as 73 percent just last August, but then the allegations began to resurface, this time in the Senate. Durenberger at first denied any wrongdoings, but he did acknowledge some of his actions may have "failed the smell test".

SEN. DURENBERGER: [December 20, 1989] I apologize this morning to the people of Minnesota. In retrospect, it is clear that I made mistakes and I had lapses in judgment on these matters. I didn't give them sufficient attention. There are important questions that went unasked. I failed to appreciate the appearance of what I was doing.

MR. LAZARO: Durenberger promised to cooperate fully with the committee and to correct any improprieties he could. He returned $11,000 in lodging expenses he improperly charged the Senate while staying in his own Minneapolis condominium.

REPORTER: On Wednesday, the Star Tribune ran a copyrighted article detailing alleged banking improprieties of the Senator. Durenberger testified before the Senate Ethics Committee in a closed meeting yesterday afternoon.

MR. LAZARO: But in the weeks that followed, there were more revelations this time in the press, back dated real estate deeds and personal loans from a local bank at below market rates. Durenberger again denied any intent to defraud. One of the Senate's poorest members, Durenberger has offered an explanation of financial hardship for his overall conduct.

SEN. DURENBERGER: During that particular period of time with four sons of college age and all of the other things that are going on in my life, that I needed to maximize my resources in the way that in many other people find themselves in these kinds of situations as well.

MR. LAZARO: The Senator's damage control strategy has had mixed results at best. Minnesotans may relate to his financial situation, but many, it seems, don't like the way he dealt with it.

D.J. LEARY, Political Analyst: They say, listen, you knew what the job paid when you went for it. They say it time and again and they're very tough. We've heard that on telephone call-in programs where the Senator's appeared, and if you say, I'm just trying to put my four boys through college, they say, I'm doing that here and they foreclosed on the farm.

MR. LAZARO: In just three months, Durenberger's approval rating plummeted from 73 to 41 percent. Leary and Spano say more than any individual infraction or dollar amount the chief cause of voter disenchantment is a perceived abuse of privilege, something especially unpardonable in a state reputed for clean politics.

MALE CITIZEN: I'm kind of upset. It's too bad. You send a guy to Washington to represent the state and I think all that power went to his head and it's not right. I mean, if I were to do that same thing, I'd be in jail.

FEMALE CITIZEN: I just expected more from a Minnesotan I guess.

OLDER MALE CITIZEN: He says that he's not aware of the situation he was in. His people were doing it. I think that you've got to be on the ball. You're in charge of your people. You have to know what they're doing for you and I think he's made some mistakes and I think it's about time he steps down. I really believe this.

MR. LAZARO: However, most voters appear more reserved. The same polls that reported lower approval ratings show a majority want Durenberger to resign only if the Ethics Committee actually finds violation.

YOUNG MAN: Well, we have an idea, but I don't think we have the answers we should have yet.

WOMAN ON THE STREET: I think what they should do is finish the investigation yet, Sen. Durenberger, and then we'll judge it after that.

MR. LAZARO: Just how pivotal the Ethics Committee proceedings will be is a matter of dispute mostly along partisan lines, but Leary says Durenberger's days in office number no more than his current term.

MR. LEARY: When the individual is in trouble, there's almost nothing you can do to save them because they become the issue.

WYMAN SPANO: In a relationship you find out somebody's fooling around with somebody else, it takes a long time to get that healed again, or you find out a kid lied to you, you know, and in this case, I think we, you know, Minnesotans feel sort of betrayed and it's going to be real hard for him to put that back together.

MS. SANDA: I get a little perturbed at people who are out there singing the song about what songs are we going to sing at his funeral. He is a sitting and viable United States Senator.

MR. LAZARO: Beneath the partisan bravado, however, Minnesota Republican Consultant Kris Sanda admits to some apprehension about Durenberger's future, especially if the committee finds him guilty.

KRIS SANDA, Republican Political Consultant: There's lots of degrees of gray in this. I think the numbersof items that he's been charged with are serious. Are they criminal? No. Could they be? Perhaps. Those of us that know and trust Dave Durenberger are hoping for the best but I tell you, we're bleeding. We really are bleeding.

MS. WOODRUFF: As we reported, the Senate Ethics Committee begins public hearings on the Durenberger matter tomorrow. RECAP

MR. LEHRER: Again, the major stories of this Monday, the Coast Guard worked to put out the fire aboard the oil tanker off the Texas Gulf Coast, former Reagan National Security Adviser John Poindexter was sentenced to six months in prison for Iran-Contra crimes, and the U.S. Supreme Court declared the new flag burning law unconstitutional. Good night, Judy.

MS. WOODRUFF: Good night, Jim. That's our Newshour for tonight. Tomorrow night we'll be discussing the possibility of the U.S. breaking off talks with the PLO. I'm Judy Woodruff. Thank you and good night.