The NewsHour with Jim Lehrer; April 2, 2007

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.. .. .. .. .. .. .. .. .. .. .. .. . .. . .. ... .. .. of the Tribune Company, the constitutional arguments between Congress and the President over Iraq War Policy, and a Jeffrey Brown conversation with a Palestinian architect turned author. Major funding for the new zower with Jim Lehrer is provided by

why. What will be their internet? How far will their network stretch? Will their whole world be wireless? Wherever they lead us, we're building a company now, we're data, video, voice, and now wireless work together for the way they live. Welcome to the new AT&T, your world delivered. The world's demand for energy will never stop, which is why a farmer is growing corn, and a farmer is growing soy, and why ADN is turning these crops into biofuels. The world's demand for energy will never stop, which is why ADN will never stop, we're only getting started, ADM, resourceful by nature. And by Chevron, Pacific Life, the Atlantic Philanthropies,

the National Science Foundation, and with the ongoing support of these institutions and foundations. And this program was made possible by the Corporation for Public Broadcasting, and by contributions to your PBS station from viewers like you. Thank you. The Bush administration lost a major legal fight on global warming policy today. The U.S. Supreme Court ruled the Environmental Protection Agency does have the power to limit carbon dioxide emissions by cars. The case was decided five to four. White House spokeswoman Dana Perino had this reaction. It's a legal question of whether or not the federal government has the legal authority to regulate greenhouse gases as a pollutant. And the prior administration said that they thought they had that legal authority,

but they did not take action. We questioned whether we did have the legal authority. Now the Supreme Court has settled that matter for us, and we're going to have to take a look at and analyze it and see where we go from there. The Court said the EPA must give a better reason if it still wants discretion not to regulate car emissions. In another environmental case, the justices ruled against more than a dozen electric power companies. They challenged federal mandates to install pollution control equipment on older coal-fired plants. We'll have more on both decisions right after this news summary. The Supreme Court also rejected today a new appeal from detainees at Guantanamo, at least for now. Several dozen terrorist suspects argued the administration has not moved quickly enough to review their status. But the Court said it will not consider that issue until the detainees have military hearings. In Iraq today, a suicide truck bomber killed at least 15 Iraqis and a U.S. soldier in Kirkuk. The truck exploded outside a police station, a number of children were among scores of wounded. Elsewhere, nearly 50 more Iraqis were killed

or found dead, and a British soldier and two more Americans died in separate attacks. In all, there were 81 U.S. deaths during March. More than 3,250 Americans have been killed in Iraq since the war began four years ago. A new wave of refugees flowed out of Somalia's capital city today. A local human rights organization set nearly 400 people have been killed in Mogadishu in four days of fighting. Somali and Ethiopian forces have battled the remnants of an Islamic insurgent group. There was a lull in the fighting today, and the Somali government warned people to flee areas held by the insurgents. Iran called a day for resolving its seizure of 15 British sailors and Marines without a trial. Britain answered it would welcome those talks. Hours earlier, Iran showed more images of the seized Britons. We have a report from inside Iran from Julian Mannion of Independent Television News.

More pictures of the prisoners once again displayed to the British government's discussed on Iranian television. These images seem to be from video shot last week, but this time more of the 15 Navy personnel are seen, and the Iranians now claim that all 15 have confessed to trespassing in their waters. I operate out of Forget Foxtrot 99, using two sea boats that looked like they're called pacifics, and we were arrested in this location here. Two more apparent apologies were broadcast last night. The men were Navy Lieutenant Felix Carmen and Captain Chris Ayer of the Royal Marines. These may be the last such statements to be shown. Tehran radio now claims that there have been some positive changes in British attitude, which could possibly lead to a solution, and that these televised apologies will not be shown again. This drama has been taking place during Iran's New Year holiday, which has closed much of the government down. Normal business will resume tomorrow,

and President Mahmoud Ahmadinejad is planning to hold a news conference. Douglas intended to reassure his people that he's handling the crisis the right way. The controversial president has used the crisis to show a confident face to the world, but some in Tehran believe that the seizure of the sailors was born out of desperation, desperation resulting from American military threats and economic pressure designed to halt Iran's nuclear program. In Washington today, a former FBI agent was reported missing in Iran. The FBI said he was last seen during a business trip in southern Iran in early March. The U.S. concluded a sweeping trade agreement with South Korea today. It wipes away trade barriers on industrial goods, agriculture, and internet commerce among other things. But key Democrats and Republicans in Congress threatened to block the deal unless South Korea lifts a ban on U.S. beef. A major lender for high-risk mortgages filed

for federal bankruptcy protection today, news-century financial corporation made its chapter 11 filing in Delaware. It was the latest in the string of collapses in the so-called subprime market. News century had been one of the largest providers of subprime mortgages in the country. It now faces two federal investigations. A new survey confirmed the worst today for those who fly the annual airline quality rating found more people were delayed or bumped or lost bags than in 2005. The three top-rated carriers were Hawaiian Airlines, JetBlue, and AirTran. The bottom three were Comer, American Eagle, and Atlantic Southeast. Dean Hedley at Wichita State University, co-author the survey. He said the trend is in the wrong direction. From 2003, forward, the quality as we have monitored here using identical measurement processes, we can verify that the quality of the performance of the airline industry

has gotten progressively worse over the last three years. No surprise to anybody that's been in an airplane. Most people would probably say that's true in their experience. An industry spokesman warned things will get worse still if the air traffic control system does not grow to handle added flights. He said it's not a pretty picture. Colorado Congressman Tom Ten Crado officially joined the Republican presidential field today. He's gained attention in recent years for strong opposition to illegal immigration. Today, he said that's the central issue of his campaign. He criticized other Republican candidates for shine away from action against illegal immigrants. There was a major sale in the media business today, the Tribune Company accepted a buyout worth $8.2 billion from Sam Zell, a Chicago real estate investor. The sale includes the Chicago Tribune, the Los Angeles Times, as well as other newspapers and a chain of television stations. Tribune also announced it's selling the Chicago Cubs.

At the end of the baseball season, the season opened today in many cities. We'll have more on the Tribune story later in the program tonight. On Wall Street today, the Dow Jones industrial average gained nearly 28 points to close at 12,382. The Nasdaq rose less than one point to close at 24, 22. And that's it for the news summary tonight. Now the Supreme Court's pollution decisions, the Tribune's sale, constitutional power to conduct war and words from the Middle East. The Supreme Court's environmental rulings raise Suarez as our coverage. Today's decision ordering the EPA to consider regulating car emissions and other greenhouse gases was considered the most significant environmental case of this term. The court also weighed in on a second big case, this one involving pollution and aging power plants. Here to walk us

through both decisions is NewsHour, regular Masha coil of the National Law Journal. And first, Masha, what was an issue in Massachusetts versus EPA? Well, Ray, Massachusetts, a number of other states, local governments and private organizations, had sued EPA claiming that it had abdicated its responsibility under the Clean Air Act by refusing to regulate the emissions of four greenhouse gases, including carbon dioxide, known to contribute to global warming. They lost in the lower courts. They brought the case to the Supreme Court and asked two basic questions. One, did EPA have the authority to regulate these emissions from new motor vehicles under the Clean Air Act? And if it did, were the reasons EPA had given for not doing it consistent with the Clean Air Act? So, Massachusetts went into court and pled that, but EPA went into court what? It said, we as a regulator, we don't want to regulate this.

Well, EPA really had two arguments. It said first that it didn't believe it had authority under the language of the Clean Air Act to regulate these emissions. And said, secondly, even if it did have the authority, it felt it was unwise to do so at this time because a variety of reasons. There was no clear causal link between the greenhouse gases and global warming. And regulation would interfere with a variety of other federal global warming programs, including the president's approach in treaty negotiations. And what did the justices decide? The justices rejected all of EPA's arguments, those two as well as a very important question involving whether the states and the local governments even had what we call standing to sue EPA. That is, had the right to go into court and sue EPA. First of all, the court, it was a five-four decision written by Justice John Paul Stevens, said first, the language of the Clean Air Act, how it defines air pollutant, is a sweeping

definition and the greenhouse gases fit well within the definition of air pollutant. And then it said EPA's alternative argument that it was unwise, even if it had authority to regulate, that the reasons given were really policy reasons that had nothing to do with the text of the Clean Air Act. The court said that EPA has to come up with reasons that form a scientific judgment. And the reasons it gave were not in that category. So EPA acted arbitrarily and capriciously and against the Clean Air Act. Now, just to be clear, the Supreme Court majority, the five justices didn't rule the greenhouse gases cause global warming. No, they did not. And there was a lot of discussion about global warming in the opinions about how important an issue it is today. But they were not saying

EPA, you must regulate. They were saying, one, EPA, you have the authority. But if you decide not to regulate, you have to give reasons that are consistent with the Clean Air Act. The other case that was ruled on today, environmental defense versus Duke energy. What was it issued there? This was, again, the interpretation of the Clean Air Act. EPA this time had sued Duke energy and a number of utilities that made modifications to very old and deteriorating cold burning power plants back in the 1980s. EPA claimed they had violated the Clean Air Act by not getting permits. The modifications that the utilities made allowed these plants to operate for more hours and increased the annual pollution. So they needed the permits. The lower court had agreed with the utility that the utilities interpretation of what a modification is under the Clean Air Act did not require a permit here, basically.

The Supreme Court unanimously disagreed with the lower courts analysis of the Clean Air Act. This was a very high stakes case for both sides. Environmentalists feared if EPA's interpretation of modification failed that these utilities would be able to continue to run these aging plants that would continue to pollute areas that had now come within air quality standards. The utilities feared that if their interpretation failed, they would be facing very costly implementations of modern pollution control, technology, electricity prices would go up. And, nine nothing, a pretty definitive rejection of their argument. Yes, you're welcome. Now, two assessments of the impacts of these decisions from Carol Browner, former EPA administrator during the Clinton administration, she filed amicus briefs in both these cases, and from Ann Clay, a former general counsel to the Environmental Protection

Agency during the current Bush administration. She represented the agency at different stages of both current cases in Ann Clay, how significant are these decisions? I think the climate change case is clearly significant. It will change, I think, the regulatory landscape that the agency in Congress and others face for decades to come. A big setback then for the auto-industries, for instance? I think the decision is disappointing. It's not going to achieve any significant benefit from a greenhouse gas perspective. In fact, I think, as Chief Justice Roberts pointed out, this decision will have no appreciable effect in terms of reducing greenhouse gas emissions. What it does do is wait into an area of significant policy that Congress should address. Whether it's a setback or not, I think all industries are going to have to look at this decision and determine what the impacts of it are. Carol Browner, how do you see these for us?

Well, I think this is an incredible day for the environment. I think that in the case of greenhouse gases, this is a landmark decision. The court very clearly said that EPA can regulate greenhouse gases under the existing clean air activity that they do not need to go to Congress and get new authority. I doubt this administration, the Bush administration is going to take advantage of that, but certainly I think future administration as well. We looked at the Clean Air Act when I was at EPA. We wrote a series of legal memorandums and we found that, in fact, you could regulate greenhouse gases under the Clean Air Act and the court affirmed that today. In the case of the old power plants, these are actual enforcement actions that were filed while I was still at EPA under the Clinton-Gore administration. It is very sad to me that it has taken this long to get to the Supreme Court, but a nine-nothing decision that these power plants are probably going to have to get on with reducing their pollution. This is pollution that contributes to the ozone, to the smog on a hot summer day. There are very real health consequences associated with this type of pollution. It's important to remember, Ray, we found more than two dozen cases.

Many of these old power plants settled these cases and they put on modern pollution controls. A few decided to litigate, and today the court essentially said to them, you know what? You're probably going to have to put on some new pollution control devices, and I think that's only fair and appropriate. Now you heard your colleague Ann Cleve mentioned that the Chief Justice pointed out that this might result in no reduction in the release of greenhouse gases into the environment. Quick response to that. Oh, I think that's absolutely wrong. It may be true under the Bush administration that nothing changes, but in the next administration, and I dare say whether there's a Democrat or a Republican, you are going to see action under the Clean Air Act to reduce carbon emissions. Now Ann Cleve, the Supreme Court didn't tell the EPA that it has to regulate in this area, right? No, that's true. But I will agree with Carol that what the Supreme Court has done is significantly constrained EPA's authority or its flexibility in determining when and whether or not to regulate, whether it's from cars or power plants. The reason that I say that this decision

will have no impact in terms of reducing greenhouse gas emissions is that is the same point that the dissent made in the opinion. What we're talking about is an infinitesimal percentage of the greenhouse gas emissions that are contributing to a global problem. Nobody's disputing that the greenhouse gas emissions and the climate change is a serious problem. That's not what this case is about. This case is about what are the best tools that we as a country can bring to bear to address the problem. And piecemeal regulation that would be facilitated by this decision is not the approach. This is a political issue. It's an international issue. Congress needs to step in and address the political and policy issues. And we need to bring our trading partners along. If we send businesses to foreign countries that are not regulated, India, China, Mexico and others, we're not reducing greenhouse gas emissions. This is global, remember. So all we're doing is transferring those emissions where they will increase in countries that are not regulating.

So it's not a question about doing something to address climate change. Of course we should. And this administration has been committed to doing so. It has invested substantial resources over $5 billion annually for the past few years to develop new technologies to address greenhouse gas emissions, to sequester carbon emissions from power plants, to develop innovative partnerships and programs where we're working with industry to reduce the greenhouse gas emissions. And those programs have had more effect in terms of reducing greenhouse gas emissions than what the vast majority of other countries are doing currently, including those countries that have signed Kyoto. So I think it's not fair to say that this administration has done nothing. In fact, they've done quite a lot. And I will note that it is true that the Clinton administration and under Administrator Browners leadership did issue legal memos. They did nothing to regulate greenhouse gas emissions. So this is a step. Well, we actually did much more than the Bush administration has done on all environmental matters. But I don't want to debate the Bush administration

versus the Clinton Gordon administration. That's what it was about for themselves. But this one agency, changing the rules surrounding this one agency, won't answer the needs of a global problem. It does answer the needs in the following way, which is now we don't have to wait for Congress. I hope Congress acts. I absolutely hope they act. But right now, you have a law on the books that would allow this administration if they choose to start to regulate carbon and not just from cars. They could go much further because the majority opinion and and keep citing the minority, not the prevailing side. The majority opinion is very clear that the Clean Air Act as currently written gives EPA authority. The case was about cars, but there's no reason for EPA not to take this opinion and look more broadly. There's a power plant case that's coming up on the same issue. And this opinion will be very significant in terms of all of the other sectors where EPA could be using its power today to regulate carbon. Very quick. Do you take Carol Browner's point that even though this began with cars and regulating the auto industry, this could have very broad application. Absolutely. That's why I

think this case changes the landscape for decades because I think the arguments that were made with cars and that the Supreme Court did accept. I think we'll be made for power plants and major manufacturing facilities across the country. I think this is a truly a very significant decision. And you're read of the Duke Energy decision? To me, I think the Duke Energy decision while it's very important in the context of power plants and other industrial facilities that are subject to those are big polluters, right? Those emit significant air pollutants. But the reality is, while those enforcement cases were necessary in the 90s to get the power plants to make some of those reductions and a number of them did settle those cases, there are new rules on the book, the Clean Air Interstate rule, for example, as well as the Clean Air Mercury rule that are requiring power plants to make those reductions now. So there are existing regulations that weren't on the books in the 90s to address some of those air emissions. But it is a significant decision. The ultimate question of what tests do you apply to determine whether power plants

are in the program or not will yet be resolved, the case is going back to the fourth circuit. So it's still open, it's still an open question. There may be rules on the books about these power plants, but they are not strong rules. The Mercury rule that the Bush administration has put forward is a shadow of what these facilities should be doing to reduce their Mercury admission. So something on the book is not really the answer. The real question is, these plants were told to clean up their pollution. They've been told to clean it up for a long time. They had a legal obligation and the court agreed with that today. Earlier, you said something about whether the administration would back EPA in making new regulation. Is the EPA a creature of the administration that it lives under at any given time so that the full impact of these rulings may not be known until you get an administration that might favor less, for instance, voluntary caps or industry taking care of its own house on these issues?

Well, EPA answers both to the president, that the administrator serves under, but also to the Congress in terms of the laws that Congress has written and directed EPA to implement. I think, unfortunately, in the Bush administration, the White House has far too much say over the EPA as opposed to allowing the laws to stand. And I think what you've seen in the lower courts and now in the Supreme Court is a repudiation of the way in which the White House has been interfering with the ability of EPA to read the statutes and do its job. I mean, both of these decisions today really go to the heart of how EPA should be reading the statutes. Carol Browner and Clea, thank you both. Thank you. Still coming tonight, the constitutional struggle over Iraq, a Palestinian writer, and the sale of the Tribune Company. When Eiffel has that story.

After a six-month auction that climaxed in a weekend bidding war, the Chicago-based Tribune Company accepted an $8.2 billion buyout from hometown real estate magnets Sam Zell. The deal beat out a similar offer from two other billionaires, Los Angeles-based Eli Broad and Ron Burkle. The Tribune sale marks the second time in a year that worried investors have forced the sale of a major American newspaper company. Last March, the venerable Night Ritter newspaper chain owner of the Miami Herald and Charlotte Observer was purchased by the McClatchy Company, a smaller publisher. The 160-year-old Tribune Company, America's second-largest publisher, will be taken private by Zell, who has never run a newspaper. Tribune's Marquis Holdings include its namesake, the Chicago Tribune, the Los Angeles Times, which Tribune acquired in 1999, along with New York's Newsday, the Baltimore Sun, and the Hartford Current in Connecticut. In addition, Tribune also owns 23 television stations and Chicago-based

Superstation WGN. Tribune's internet properties include careerbuilder.com and cars.com. Tribune also owns baseball's long-suffering Chicago Cubs. The company announced today on opening day that the Cubs will go on the block after this season. Readers and advertisers had been leaving print for the internet creating a crisis in the newspaper industry. Tribune was not immune. The company put itself up for sale last fall as its stock price plummeted. Financial and staff cutbacks followed. Two top managers at the Los Angeles Times, editor Dean Bake, and publisher Jeff Johnson, resigned rather than make those cuts. Both argue that shedding staff would lead to shoddy journalism. With me to discuss the potential impact of the Tribune's sale is Frank Arras,

media and entertainment industry reporter for The Washington Post. Frank, what does this sale tell us about the health in general of the newspaper industry? Well, what it tells you is the nickname of the newest member of the newspaper owner's club is nicknamed The Grave Dancer. What does that mean? It means that Samsung has made a long and profitable career by identifying properties and business sectors that have been overlooked, have been given up for dead by others, buying in at bargain basement prices, and building them up extracting their profits, selling them off. Is a newspaper deal, what people think of newspapers, somehow as some icons of the community, is that kind of a corporate deal different than a normal corporate deal? Actually, it's really not, and that's what has most people like you and me and so forth worried, is that many people in the industry have the feeling. I mean, we got into this, many of us for almost religious reasons, but at the end of the day it's a publishing business or it's a broadcasting business, and that's what Zell is looking at. He's looking to acquire an industry that even though it's not growing the way it was, and its stock is not

rising on Wall Street, it's still, as they say, throws off a lot of cash. It makes 15, 20% profit margins, not infrequently. Tell us some more about Samsung, the Grave Dancer. Tell us about what he has never had any experience in the news media before, so what is it that people can expect? A telling story about Samsung, who's 65, he's a Chicago hometown guy. He likes to ride motorcycles with his rich buddies all over the world. They call himself the Zell's Angels. He's a very aggressive kind of guy. He started in real estate where he made all of his money, almost all of his money, as an apartment manager in college, and he built up a real estate empire out of that. An interesting story about him was he decided to get into radio in 1992, and the market wasn't doing so well. He bought into some tiny little, almost bankrupt radio stations in Cincinnati for about 70 million, and six years later, after, as he saw the wave of consolidation coming,

turned those stations over for $4.4 billion. Is it fair to say that in spite of the profit margin, which you just alluded to a few minutes ago, that the cost cutting, which is cost so much angst within the industry is going to continue? Well, here's the thing. For many years, newspapers, particularly, enjoyed a kind of almost monopoly status in the markets that they existed in. They had the lock hold on advertising. They didn't have a lot of competition. They could pretty much charge the rates they wanted, and staffing decisions in newsroom journalism decisions were made solely based on needs or desired coverage areas. Now, they're starting to have to be made for the first time, in many cases, on hard-cold business reasons, the way that every other business has had to operate. Well, now there will be a certain difference in transparency that the company has gone private. What difference does that make? Well, the difference is that it pulls it out of the Wall Street spotlight. One of the big problems the newspapers have faced in the past several years is that most of them

have been public companies, and if you're a public company, you're required to do quarterly reports, hit quarterly numbers, estimates, and they've been falling short, and they're stuck and been punished by Wall Street for that. This pulls them out of that. It allows them, if they do it right, to focus on more long-term goals for the company. Of course, the creditors will still get their money, but in theory, it should be on a less frenetic quarterly cycle. As this has been building this drama involving the trivia and companies, there was a local group of Hollywood types who wanted to buy the Los Angeles Times, and a local group in Baltimore who wanted to buy the Baltimore Sun. Is Sam Zell gonna keep all these properties intact? Zell said in an interview with the Associated Press a couple weeks ago, he wants to keep the company intact. That's fair. That's what we have to take him on right now. However, this deal is going to be, as they say in the industry, highly levered. Lots and lots of debt. One newspaper executive I talked to today pointed out that it's going to be something like 10 times the debt to the cash flow, which is twice as much debt as most other newspaper companies have. That may mean he may have to sell properties to get that debt down, such as the Cubs was the first one. Well, and I want to

get back to the Cubs in a minute, but you're talking about the properties he might have to sell. Are there cross ownership issues in some markets where he owns, say, a television station as well as a newspaper station? There will could be. Yeah, a tribute strategy for much of the 90s was the cross ownership strategy. Have a big newspaper and a big television station in the top markets, and it did it in New York, Chicago, Los Angeles, work to do that. The FCC has this rule. It's a long time, 30-some-year rule that prohibits in theory such cross ownership. Tribune had had waivers to allow these to go on. Tribune's been working very hard to get this waiver lifted. It's unclear if they will get it lifted. It's unclear if the FCC will actually allow this. On the other hand, if Zell works his bid right, this is an employee stock ownership plan, and he may actually own less than the majority in the long term, therefore he wouldn't have to reapply for the waiver, so it's something to see down the line. Okay, let's talk about those cubbies. Not only did the Tribune company own the Cubs, but they also own Rigglyfield, the land under the Cubs. Do we know

why he is selling the Cubs first off and whether Rigglyfield goes with it? I think there are a number of reasons to sell the Cubs. A, they'll probably fetch anywhere from 580 to maybe as much as $700 million, depending on how people value that big contract that they gave Alfonso Soriano in the off season. Secondly, Zell already owns a piece of the Chicago White Sox, and probably Major League Baseball wouldn't be terribly happy to have one guy in the same town owning pieces of two clubs. Like I said, it's an easy asset to get rid of, and it's an easy way to pay down some debt real quickly. Now, all this said, this is not a done deal yet. There's still a lot of a couple other things which have to happen down the road for Sam Zell to actually make this happen. Yeah, it has to have a shareholder approval. The biggest and most contentious shareholder group has been the Chandler Trust. I own 20% of a Tribune, and they have three seats on the board. They were the long time Los Angeles Times family. They built Los Angeles as much as they built

Los Angeles Times, and came into the Tribune family when Tribune bought the Times Mayor Company in 2000. They said in the release today, they would support this sale. So that's one big hurdle. They want to cash out, and this enables them to cash out. And then the regulatory hurdles that we talked about. Are the Los Angeles buyers, however, potentially still in the wings on this? Well, there is a small caveat in this deal that will pay Sam Zell a $25 million so-called breakup fee because it allows the Tribune board to solicit a better offer before this one closes. So they can still shop around a bit within very tight constraints. Seems unlikely that would happen. It looks like they've cast a lot with Zell, but if they do end up with somebody better, he gets a nice $25 million fee. Frank Arrens of The Washington Post, thanks a lot. Thank you, Glenn. Now the possible constitutional showdown over Iraq and a Margaret Warner.

In late March, both the House and the Senate passed bills imposing time tables on the Iraq war. The House bill is the stronger. It requires that combat troops leave Iraq by the end of August 2008 or earlier if the Iraqi government doesn't meet certain benchmarks. The Senate bill ordered troop redeployment to begin within 120 days with a non-binding goal of removing all combat forces by the end of March 2008. The two versions still have to be reconciled in conference and the president has vowed to veto either one. So is such legislation constitutional or does it infringe on the president's constitutional powers to conduct war? To explore that, we turn to two former staff attorneys in the Justice Department's Office of Legal Counsel. The office advises the attorney general and White House on issues of constitutional law and statutory interpretation. Lee Casey served during the first Bush administration. He's now in private practice in Washington. And Christopher Schrader served in the Clinton administration. He's now a law professor at Duke

University. Welcome, gentlemen. Lee Casey, beginning with you. Are these laws constitutional? No, I don't think they are. Basically, both the House and the Senate have attempted to come up with, shall we call it, a politically painless way of ending the war. Congress could cut off money or actually in the situation we now find ourselves. Congress could simply not vote new money. And that would ultimately require the president to bring the troops home. But it would also require that Congress pay a fairly substantial political price. But what is unconstitutional? What provisions of the Constitution does this filing? Well, the Constitution divides the United States' war making power between the president and Congress. Congress has very important authorities. Congress declares war. Congress establishes an army and navy. Congress establishes rules for the governance of the army and the navy. But the president is the commander in chief. In terms of how the army and navy are used, the strategic decisions, the tactical decisions,

those are the presidents. Now, Professor Schrader, you, I gather, think this, these are constitutional. Why? Absolutely. I don't think there are anything, any provision of any of the proposals that are unconstitutional. We've recognized from the very earliest days of the Republic that the Congress using those powers that Mr. Casey enumerated and others can get us involved if they want to in a limited war. They can decide to use naval forces and not land forces. They can decide the number of troops that are available. They could decide to use to prohibit the use of landmines, to give you a modern example if they wanted to. Congress has exercised that authority from the very earliest days. Presidents have recognized and complied with those constraints. And the Supreme Court has upheld them very early on in a series of cases of the first that got to the Supreme Court, having to do with the so-called quasi-war with France. So Congress's authority is not simply limited to deciding an all or nothing

question of funds or no funds. It can define the terms and the nature and the scope of a conflict. And that's all within the powers of the Congress to exercise if it sees fit. And just briefly, what provision of the Constitution gives Congress that power, not just the power to fund or not fund, but the power to actually make some in your views some strategic decisions? Well, the cases that the Supreme Court dealt with back in 1800 were dealing with the declare war authority of Congress. And Congress in the case of the quasi-war with France had made a decision to cut off commerce with France to build up the navy and to authorize certain war-like or military actions, including the seizing of ships, American ships that were trying to sail in different ports in the Caribbean, as a means of enforcing its desire to stop commerce

with France. When President Adams authorized a naval captain to seize a ship that was coming from a French port, not going to it, that captain was eventually sued and the Supreme Court held that the President's authority was trumped by Congress's restriction on the scope of the war. And in that case, in a series of cases from that era, the Supreme Court clearly recognized that the power to declare war includes the power to declare a limited war and to define the terms and conditions in which our troops will be engaged. So Lee Casey, the Congress does have the power and your degree, the power to limit the scope of war. It's not just all or nothing. Right, well no, I actually disagree with Professor Schroeder's view of those cases. Those cases involved a question, actually, of prize money. The Constitution gives Congress the specific authority to set rules for the, for captures on land and sea. So Congress gets to decide how much money a

naval force will get when it makes a foreign capture. And in that context, yes, Congress has a great deal of authority and I'm afraid the poor captains involved in these cases did not get their money. We don't actually do that these days. But you don't think that's on point. I don't think that's that's on point. I mean, indeed, the obviously a council where we both work has a long series of opinions that says Congress can do a lot with its financial powers, with its spending power. What it can't do is attempt to direct how the president exercises his constitutional authorities and that includes, including and especially the president's authority is commander in chief. So Professor Schroeder, what provision of the Constitution do you point to that says that Congress can make those kinds of decisions? Well, I point to the authority of Congress to declare war, the authority of Congress to make rules and regulations for the armed services, the authority to raise and support an army, and the necessary and proper clause of the Constitution, which gives the Congress the authority to make all laws necessary and proper for the caring out

of any of the powers in the document, not just the congressional powers. If I can borrow an expression from Secretary Rumsfeld, who said, we go to war with the army that we have, I think it's just as appropriate to say, we go to war with the army that Congress provides, and if Congress wants to place a restriction, a limitation on the scope of an engagement, as it did during the Vietnam era, for instance, in prohibiting troops from going into Laos and Thailand, and later, a land forces from invading Cambodia, that authority falls well within the enumerated powers of the Congress. What about those precedents and the Vietnam War in the end years for Vietnam War? There's no question that various Congress's over the years have attempted to limit the president's war making power. Those attempts have not been tested in court. Ultimately, it becomes a question of the political will of the president and the political will

of Congress. In some cases, the president has complied, has concluded for reasons best known to himself. So they've managed to sidestep these constitutional? Right. For example, a good example, frankly, is the War Powers resolution, as we presidentialists call it, and the War Powers Act, as people who favor Congress more call it. Congress passed that statute over the president's veto in the 1970s. The presidents have generally claimed it to be unconstitutional, but have also, almost invariably, complied with it. So it all depends on whether the individual players at any given time are ready to mix it up. Professor Schrader, let me ask you about one other issue, a related issue. Does this question related all to the fact that Congress authorized the president to go to war in Iraq, back in October, O2? In other words, is Congress resting on that authority in any way, or does that put Congress in a weaker position, or is it not relevant to this discussion?

Oh, it is relevant, and I think if anybody is resting on it, the president's resting on it, because the 2002 Iraq resolution, which is, by the way, the authorization of a limited war. You can't use that resolution to invade Syria. You can't use that resolution to go fight the Hezbollah in Lebanon. It's a resolution, however, that gives the president a broad scope of authority to engage in armed conflict and use force in Iraq to protect the national security interests that are put at risk by Iraq, as well as to enforce the UN resolutions. That's really the basis of the president's authority to be there, and it's why, quite aside from the debate that's going on now over the supplemental, the approaches of Senator Biden and Levin to revise the scope of that authority, repeal the 2002 resolution, and put something narrower in its place, makes a good deal of constitutional sense, because Congress would be exercising its clearly

recognized authority to define a limited engagement in Iraq. Would you agree with that, Lee, Casey, that if Congress wanted to do something that was constitutional in your view, it could either totally cut off funding, or that it could rescind this authorization for the war in Iraq? Well, I'm not sure that follows. It is certainly true that if at this moment in time, the president decided to invade Syria, he would be doing so on his own inherent constitutional authority, so he would be acting in the tripartite system that Justice Jackson articulated at the weakest level. Not necessarily weak in terms of the vigor of the power, but he wouldn't have congressional support, so that would be clear. Now, on the other hand, with respect to Iraq, Congress did authorize the war. It is up to the president to prosecute that war, and when peace comes, frankly, traditionally has been a matter for the president in terms of negotiating and signing a peace treaty, he needs to get the Senate's consent, of course. So, and one other thing,

in addition, we're dealing here with two resolutions, because while it is true that the Iraqi resolution was relied on principally for the Iraq war, there is the war on terror resolution, and al-Qaeda is operating in Iraq. And Professor Schrader, five seconds, do you think that applies? I think it applies to a degree. It doesn't apply to nearly the scope of operations in which the armed services in Iraq are engaged currently, but it does apply to a degree. I agree with you. All right, Professor Schrader and Lee Casey, thank you both. Thank you. Finally, tonight, we continue Jeffrey Brown's reports on the Middle East through the eyes of writers, tonight, a Palestinian woman who tries to rebuild her world as an architect and with words. Here, actually, if you look up there, there is a stone that mentions above the bird, it mentions the name of the owner. Suad Amiri is an architect by profession,

and now, as she says, an accidental writer. Her architectural calling came 25 years ago, when she first set eyes on the old buildings in Palestinian villages. The villages were sort of invituous and were part of the landscape, and the stone houses, the scale of those buildings, the small scale of the roads. The natural setting was very, very beautiful. Amiri's Palestinian father fled his home in Jaffa on the Mediterranean coast in the midst of the 1948 war that led to the creation of Israel, and Amiri herself was born and raised in Jordan and Syria. She studied architecture in Lebanon and the United States, before coming to the West Bank city of Ramallah in 1981. Ten years later, she founded the Rewox Center for Architectural Conservation, an award-winning organization that restores and preserves old Palestinian buildings. Basically, a lot is an organization for the protection of cultural heritage,

but we are not here to protect buildings as museums. We are more socially interested in the place, and we have developed a philosophy of conservation whereby we seek conservation as a job creation. Over the last 16 years, Rewox has restored 70 buildings using local laborers. As a security measure after the violence that hit its streets several years ago, Israel stopped allowing Palestinian day workers to cross into Israel to work. Amiri says Rewox projects focus on villages where the unemployment rate is often 50 percent or higher. The bubble art, this means late 19th century. Haldun Bashara is the architect in charge of this project in the village of Burkim, by an hour north of Ramallah. Like many of the projects, this will be a cultural center for the whole town to use. This village of six to eight thousand people, they don't have a library, they don't have a computer lab, they don't have a place to meet, they don't have a multi-purpose

hall. So we try to suit the building for their needs. Rewo Ramiri says her work is about finding ways to normalize life in a place where violence often flares and just getting through military checkpoints to work or back home can take hours. Unfortunately, we are always seeing as people who are dying, but we want to be seen as people who are living and who are people who want to live and have a will to continue to live. Amiri is a woman who clearly has her priorities, her work, her dog, Nura, and her sense of humor, which comes through in a memoir she wrote several years ago with the unusual title, Sharone and my mother-in-law, that's Sharone as in Ariel Sharone, then the Prime Minister of Israel. It came about this way. In November 2001, responding to the growing violence of the second Intifada or Palestinian uprising that had reached Israel's streets,

Ariel Sharone sent the Israeli army into Ramallah, the West Bank home of the Palestinian Authority government. The city was put under tight control with a curfew and numerous military checkpoints. Amiri quickly realized that she needed to have her mother-in-law come stay with her as a safety precaution. She came to live with me, so she's zero in the courage. In 91 years old, we wanted to have her breakfast at seven and her lunch at one, and what have you. At a time where we were under curfew, where you couldn't know whether it was Monday or Wednesday or morning and evening, and I had my mother-in-law nagging me about, you know, when are we going to eat and when, what are we going to eat? And I had the Israeli soldier just right outside, and really the pressure was incredible. So at the end of the day, I just wrote what happened with me that day. And you know, I became a writer by pure accident. It's alternately funny and sad. Is that how you felt?

Well, this is our reality, actually, and I think lots of anger spoils your life, and I think that the occupation has spoiled Palestinian life, but as well as Israeli life. And I always find out that, you know, a little bit of joking, even on checkpoints, I do it every now and then. It gets you, it gets the soldier and you, the occupied and the occupied into reminding one another that we are human beings, you know. I remember one time I was going home and there was a checkpoint and a curfew in Ramallah. And the soldier stopped my car and said, go back. I said, back where I'm coming from the university, I'm reaching home. He said, no, there is a curfew you can't get home. He was peeling an orange at that time. So I looked at him and I said, I will only listen to your orders if you give me half of your orange. And the soldier just looked at this crazy woman and he didn't know what to do with me. He sat there, he peeled the orange, gave me half of it and after that he told me, okay, you can go home now. You can go home after you've

shared the orange. Exactly. And this is what I do in the book. I think I keep reminding ourselves and the Israelis that at the end of the day we are human beings like one another and I always tell the Israelis when they ask me, you know, we just want what you want, not more, not less. But as simple as it sounds, it's very difficult. These days, Suiramiri talks about new difficulties within her own community. She sees a growing religious fundamentalism reflected in last year's election victory by Hamas. And worries about the impact on any potential peace process and on Palestinian society itself. I was surprised because we didn't expect Hamas to win. But I was saddened that Hamas won. And I was saddened because of the social agenda that Hamas represent, I being an Arab woman. They are social agenda, it's a very conservative one. But also I was saddened because I felt

that the group to which I belonged, whether on a social level or in a political level, has been undermined. And that means more extremism. I always feel the following that each one of us has a multi layer of identity. You know, I am a woman, I am an Arab, I am a Palestinian, I am a Mediterranean, I am a Muslim, I am many, many things. I grew with a group of people. I really didn't know who was Muslim, who was Christian, who was I didn't know whether I was Sunni or Shia until I went to the university to Beirut. When I went to register at the university asked me, what are you Muslim or Christian? I knew I wasn't Christian, okay? So there's Muslim, are you Sunni or Shia? I had no clue. And here we are, we are living in this part of the world. And unfortunately, our identity always sudden, I've never realized I am a Sunni, always suddenly stalked people saying Sunni news and Shia aides and killed them. So you are living in an

air, where everything goes against your own thinking, against being a human being. And this hurts. Suha Ramiri, the author, is taking this new situation to heart. Even as she continues her architectural restoration work, she's writing a new book on the role of women in her part of the world and the growing challenges they face. Tomorrow, Jeff Brown talks with his Rayleigh writer, David Grossman. Much more on this entire project is available on our website at PBS.org. And again, the major developments of this day, the U.S. Supreme Court ruled against the Bush administration on global warming policy. It said the environmental protection agency does have the power to limit carbon dioxide emissions by cars. And three American soldiers and more than 60 Iraqis were killed in attacks across Iraq. A reminder, you can download

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