The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. Good evening. I'm Jim Lehrer. On the NewsHour tonight, a four- person discussion of how the don't ask-don't tell policy is working in the U.S. military; excerpts from last night's Gore- Bradley debate in New Hampshire; our own debate over the U.S. Supreme Court's second look at the Miranda criminal rights decision; and a Paul Solman report on a new opera based on the story of "The Great Gatsby." It all follows our summary of the news this Thursday.

NEWS SUMMARY

JIM LEHRER: Hundreds of Cuban-Americans blocked streets and disrupted traffic in Miami today. They were protesting the decision to return six-year-old Elian Gonzales to his father in Cuba. Police made as many as 80 arrests. There were no reports of injuries. U.S. Immigration officials ruled on the boy's case yesterday. In Washington today; Attorney General Reno said they made the right choice.

JANET RENO: What they took into consideration is who, under the law, can speak for this six-year-old boy who really can't speak for himself. He has a father. And there is a bond between father and son that the law recognizes and tries to honor. We have no information that would indicate that that legal connection, that bond, should not be honored.

JIM LEHRER: The boy was rescued at sea in November after his mother died trying to sail to Florida. He's been living with relatives in Miami. They said they may go to court to keep him in the US. President Clinton rejoined the Israeli-Syria peace talks today in Shepherdstown, West Virginia. State Department Spokesman James Rubin said Mr. Clinton will try to accelerate the pace of negotiations. The two sides have yet to meet face-to-face on the key issue of the Golan Heights, but Rubin said that does not mean the four-day-old talks are stalled.

JAMES RUBIN: We did bring them all here because we thought having them all in the same place would help, but it doesn't mean that every issue is best negotiated, discussed and resolved through face-to-face discussion between the Syrians and the Israelis. That's our job, to try to figure out what is the best way to do that, and that's what we've been doing.

JIM LEHRER: Overseas today, India arrested four men in connection with the Indian Airlines hijacking. The interior minister said they were members of a guerrilla group fighting to make Kashmir independent. They're suspected of helping the hijackers plan the operation. The gunmen held the plane and 155 hostages in Afghanistan for a week. They fled on New Year's Eve after India released three Kashmiri militants from jail. Back in this country, the Democratic presidential candidates debated last night for the fourth time in their campaign. Vice President Gore and Former Senator Bill Bradley met at the University of New Hampshire. They clashed over health care and relations with Russia, among other things. We'll have excerpts later in the program tonight. The Presidential Debate Commission announced rules for their fall debates today. Only candidates who average at least 15% support in major national polls could participate. Third parties have sued over that same requirement in the past. A co-chairman of the commission spoke in Washington.

PAUL KIRK: Ours is the final end game about who are the principal rivals. We thought that the American electorate would think that's fair enough: If someone faces the 15% threshold after (no audio - technical difficulty) campaign, that's okay, let's bring him in, let's bring her in. And if they don't, keep trying, we'll see you next time.

JIM LEHRER: The Commission said there would be three Presidential debates-- in Boston; Winston- Salem, North Carolina; and St. Louis. A vice presidential debate was set for Danville, Kentucky. All four would be in October. On Wall Street today, the Dow Jones Industrial Average rose again, closing up 130 points at 11,253. But the NASDAQ Index fell for the third straight day. It dropped 150 points to close at 3727, a loss of nearly 4%. And that's it for the News Summary tonight. Now it's on to the new turn in the gays in the military debate; Gore versus Bradley in New Hampshire; revisiting Miranda; and Gatsby at the opera.

UPDATE - GAYS IN THE MILITARY

JIM LEHRER: Tom Bearden begins our update of the gays in the military story.

TOM BEARDEN: The Pentagon's policy on gay service is commonly called "don't ask, don't tell," and has been in effect since 1993. It was the result of a hard- fought compromise between President Clinton, who had advocated allowing homosexuals to serve openly, and the Joint Chiefs of Staff and Congress, who opposed it. Congress passed a law rendering such service illegal. The "don't ask, don't tell, don't pursue" policy says: "The Department of Defense will not ask, nor will members be required to reveal their sexual preference. Homosexual orientation is a personal and private matter and will not be questioned during service. However, homosexual conduct is not compatible with military service and will subject a member to discharge from the armed forces." Provoking the latest round of political debate was the killing of Army Private Barry Winchell at Fort Campbell, Kentucky, last year, and the murder conviction and sentencing of 18-year old Private Calvin Glover last month. Soon after, in New York, Senate candidate and First Lady Hillary Clinton, speaking at a gay rights fund-raiser, said the policy had not worked. A week later, her husband agreed. In a radio interview, Mr. Clinton said the policy was out of whack and, as implemented, does not work. The issue was again raised at last night's presidential campaign forum in New Hampshire.

QUESTIONER: If you become president, would you nominate members of the Joint Chiefs who only support your gay policy? In other words, will it be a litmus test?

AL GORE: I would try to bring about the kind of change in policy on the "don't ask, don't tell" policy that President Harry Truman brought about after World War II in integrating the military. And I think that would require those who wanted to serve on the position of... on the Joint Chiefs, to be in agreement with that policy, so yes.

BILL BRADLEY: My sense is that when you're President of the United States, military people are loyal to their commander-in-chief, whatever the policy is that the commander-in-chief calls for for the country, and that's what I expect them to do if I'm President of the United States and we move towards gays in the military, which I intend to do.

TOM BEARDEN: The President weighed in again today, standing in front of the Clintons' new home in New York.

PRESIDENT CLINTON: I think a lot of people have actually forgotten that Congress put into the law the present policy. And so what I'm going to do is spend the next year trying to make sure that we do what was intended and what I announced would be done after extensive consultation with our commanders back in 1993. I believe that the next president, if he wants to change the policy, will have to get the Congress to change the law.

TOM BEARDEN: Among Republicans, George W. Bush, John McCain and Steve Forbes back the current policy. Their more conservative opponents, Gary Bauer and Alan Keyes, have urged a return to the pre-1993 policy barring gays from serving. Last month, after the Clintons first spoke, defense secretary William Cohen announced a three- month review of the policy, especially into allegations that gays were being singled out for investigation and harassment. But former Marine Commandant General Carl Mundy and other retired officers have urged caution, warning that politically inspired changes could provoke a backlash in the all-volunteer military. A recent study of professional officers indicated as many as 27% would leave the service if gays were allowed to serve openly.

JIM LEHRER: Margaret Warner takes it from there.

MARGARET WARNER: Now, four views on "don't ask, don't tell," and whether the policy needs to be changed. Michelle Benecke is co-executive director of the Servicemembers Legal Defense Network. She served in the Army as a captain. Robert Maginnis is senior director of national security and foreign affairs at the Family Research Council. He is a retired Army lieutenant colonel and was part of the Pentagon's study group that came up with the "don't ask, don't tell" policy. Lieutenant General Paul Cerjan is president of Regent University. He retired after 34 years in the Army, where his last post was as president of the National Defense University. And Major General Vance Coleman retired from the Army reserves in 1989; he served as an artillery officer in the Korean War, and he's now director of a community education foundation. Welcome all.

Michelle Benecke, President Clinton, the man who helped certainly spearheaded this policy to start with, now says it doesn't work. Is he right?

MICHELLE BENECKE, Servicemembers Legal Defense Network: This policy doesn't work. He is right. Military leaders continue to ask people about their orientation, to pursue suspected gay members, and to tolerate anti-gay harassment. In the last six years, my organization, Servicemembers Legal Defense Network, has assisted 2,000 military members who are hurt by this law. Harassment increased 120% alone last year in our cases. Discharges have increased 86% under this law.

MARGARET WARNER: This is just for being homosexual.

MICHELLE BENECKE: Right. And the reason discharges have increased is because people facing harassment in the military have no recourse but to leave. And finally, service members are being required to lie, even to their parents, their doctors and their best friends, as a condition of serving our military. No, this policy doesn't work.

MARGARET WARNER: General Cerjan, do you think the policy works?

LT. GEN. PAUL CERJAN (Ret.), U.S. Army: I think it absolutely works. It's got a few things around the edges that have to be cleaned up to enforce the policy. But let's remember, this is a law. It's not a policy. It was enacted by a Democratic Congress in 1993, and if anybody believes that commanders on the ground spend all their time trying to ferret out people who may be of homosexual orientation, they don't understand what it is to serve in the military today.

MARGARET WARNER: Well, when you say you think it works, what's your evidence? What do you mean it works?

LT. GEN. PAUL CERJAN (Ret.): Well, if you take a look at the comment that Michelle just made about people leaving the service, 86% last year left the service voluntarily by identifying themselves as homosexual. Now, we don't know whether or not they left because they wanted to get out of the service or if they were in fact homosexuals. So, I think there's a little bit of questioning about these statistics.

MICHELLE BENECKE: I want to address that, Margaret, because we do know why they left. Our organization is the only entity that documents what is occurring under this law. And the fact is that our military leaders support those people who harass their fellow soldiers rather than supporting well-meaning officers and NCO's in the field who would rather treat their people fairly. That must end.

MARGARET WARNER: All right. Colonel Maginnis....

LT. GEN. PAUL CERJAN (Ret.): I think that is a totally incorrect allegation.

MARGARET WARNER: Let me get - all right - there are two guests that haven't spoken yet. Colonel Maginnis, Bob Maginnis, do you think it's working?

LT. COL. ROBERT MAGINNIS (Ret.), The Family Research Council: I've consistently said "don't ask, don't tell" since July of 1993 when President Clinton announced that this was the policy, having been inside I said it's not going to work, one day we'll be here declaring that. It causes homosexuals to pretend they aren't homosexuals. It causes the military to pretend it doesn't care about homosexuals serving and it gives the Congressmen a free ride. They don't have to deal with this tough issue. It's time that we return to the question. It's time that we make "don't ask, don't tell" consistent with what the law says that General Cerjan just pointed out.

MARGARET WARNER: All right. Let me ask General Coleman, do you think it works?

MAJ. GEN. VANCE COLEMAN (Ret.), U.S. Army Reserve: No. It absolutely does not work. I disagree with General Cerjan. You know, it's obvious it isn't working. What just happened at Fort Campbell.... the leadership -

MARGARET WARNER: Excuse me. You're talking about the beating death of a....

MAJ. GEN. VANCE COLEMAN (Ret.): Absolutely. But the leadership was supporting the policy we wouldn't have things like that occurring. We wouldn't have this many people leaving the service as leave now. My guess is that they're leaving out of fear. When you cannot be yourself and you don't know if you're going to be physically damaged or killed, for that matter, because the commanders do not support the policy, it seems to me the thing to do is to run for safety and that is to leave the service. And that's sad when my country comes to that point.

LT. COL. ROBERT MAGINNIS (Ret.): Margaret we need to be careful about painting the entire military on the terrible problem in one unit. That was a heinous crime committed down there and Glover is going to hopefully spend the rest of his life in jail for that murder. But at the same time we need to recognize nobody denies that homosexuals have served for the last 221 years in the military. It's: under what conditions may they serve? It's been declared because they are cohort that brings in some problems, the military says they're not going to contribute to cohesion and quality force that it demands, Congress agreed, they passed a very compelling law and therefore, just like we discriminate against a whole host of other people, we say that they should not serve openly.

MARGARET WARNER: Okay. Three out of the four of you don't think it works. Is there something to make the current policy more workable? Michelle Benecke.

MICHELLE BENECKE: This law is a double standard and it's wrong. And ultimately Congress needs to replace it with a rule whereby everybody is simply treated the same, but in the meantime the least that the military leaders can do for the safety of our soldiers is to fulfill their promises to stop asking, to stop pursuits and to stop harassment. And to date they have not done so.

MARGARET WARNER: All right. General Cerjan, do you think it needs to be enforced in that way in a better way?

LT. GEN. PAUL CERJAN (Ret.): I think that it's a leadership issue and you will find that commanders, generally speaking, will protect any soldier in the force who is harassed. Now, if you think you're going to continually try to ferret out those who have a homosexual orientation, I think that's exactly wrong. You cannot make a blanket statement that all commanders in the military, the complete cohort of officers and non-commissioned officers spend all their time trying to ferret out homosexuals; that's an incorrect statement.

MARGARET WARNER: All right. Let me just get Bob Maginnis andthen I'll come to you, General. What do you think, Bob Maginnis, is the way to make this policy work? You've alluded to it, but explain it a little more.

LT. COL. ROBERT MAGINNIS (Ret.): Well, you know, Mr. Cohen is trying to do an inspection. They've already declared the policy works back in August. And, now they're adding don't harass. I'm afraid-- and I agree, we don't want to harass anyone. Nobody should be harassed. However that's going to chill the whole process. I think we're going to make commanders out there far more timid about initiating investigations. Therefore we have a protected class in the military. And that's not what the law says.

MARGARET WARNER: But what needs to be done?

LT. COL. ROBERT MAGINNIS (Ret.): What we need to do is return to the law. Congress has yet to have a single hearing on this issue since 1993. They need to hold the military accountable for what the law says and they need to reimpose the question which they can do based on that law.

MARGARET WARNER: You mean when you're recruited ask if they're gay. If they say they're gay, they're not recruited.

LT. COL. ROBERT MAGINNIS (Ret.): We're hypocritical. We're saying anybody can come in that we haven't already asked a question on, please come in and you can serve. That includes homosexuals. We ought to stop being hypocritical about this.

MARGARET WARNER: All right. But, just so I understand, because I want to go to General Coleman, you're saying essentially gays should be allowed to serve in the military but only if they're in the closet.

LT. COL. ROBERT MAGINNIS (Ret.): That's right. That's the condition under which even George Washington adhered to and for the last 220 years.

MARGARET WARNER: Okay. General Coleman, take it away. You think this can be fixed?

MAJ. GEN. VANCE COLEMAN (Ret.): No, I don't think. I think the law, as the General said, should not be there, period. We should go back to what the Army was as an individual, whether black, white, blonde, blue eyed, gray haired, whatever, if I want to serve, I should be able to serve. And providing that service, I'll have to be able to be what I am. I should not have to pretend that I'm something that I'm not. It seems to me that the Army is to fight and to win. I remember that from day one - to fight and to win -- nothing about sexual orientation. So, we can train people to fight and win, no matter what their sexual preference might be, it seems to me that's the bottom line.

MARGARET WARNER: So you agree with both Democratic candidates who would like to see homosexuals able to serve openly?

MAJ. GEN. VANCE COLEMAN (Ret.): Absolutely.

MARGARET WARNER: All right.

MAJ. GEN. VANCE COLEMAN (Ret.): I served openly. I don't know why they shouldn't be able to.

MARGARET WARNER: You mean you as a black man?

MAJ. GEN. VANCE COLEMAN (Ret.): That's right.

MARGARET WARNER: All right. General Cerjan, what about that?

LT. GEN. PAUL CERJAN (Ret.): First of all I think race is not a choice. Homosexuality is. Having said that, let me talk about the comments made in that last night on the debates. It seems to me that there's a problem here since we're not talking policy, we're talking laws. So the law has to be changed in order for any President to appoint an individual who supports an openly homosexual policy. I think that's something for the lawyers to attend to in terms of whether or not it's legal to get a chairman of the Joint Chiefs or a person to serve who is in direct contradiction to the law. Basically, let me make one more comment.

MARGARET WARNER: Please do.

LT. GEN. PAUL CERJAN (Ret.): It really bothers me that we would spend 30-some odd years educating and training the leadership of this country to move into positions of vast responsibilities as the chairman of the Joint Chiefs and chiefs of services to give that military advice to the President when we're about to put our sons and daughters in harm's way and we would eliminate the best and brightest because of a policy that says unless you support an openly gay policy in the military that only addressed 1.5 to 2% of the population does not play to what we're about and that's to win the nation's wars.

MAJ. GEN. VANCE COLEMAN (Ret.): One more comment if I may.

MARGARET WARNER: Yes.

MAJ. GEN. VANCE COLEMAN (Ret.): You know, it could be, General, that maybe the best and the brightest to lead this country to victory just might be gay.

MARGARET WARNER: All right. Michelle Benecke, make the case for letting gays serve openly.

MICHELLE BENECKE: Gays do serve openly in some units and gays have served openly in the past. Colonel Kim Meyer is one example; Marine Sergeant Justin Elzin. Through experience we have learned that when people know other gay people, they lose their stereotypes. By the way, prejudice shouldn't be a reason to exclude people in the first place. The real issue is who do we want in the military? Do we want Barry Winchells, someone who all of the testimony shows was a dedicated soldier; his unit members took the stand and testified they would go to combat with him without hesitation. That example, of any, should show that what breaks down unit morale is prejudice and hatred. We shouldn't want to recruit people like the man who killed PFC Barry Winchell. We should want to recruit fair-minded Americans.

MARGARET WARNER: Bob Maginnis.

LT. COL. ROBERT MAGINNIS (Ret.): We should not make decisions based on hatred or discrimination, but we should make decisions on what is the best interest of the military and the armed forces of this country. You know, right now we recruit people with an eye on building cohesive teams. The cohesion is the glue that holds the units together. It overcomes terror and fear on the battlefield. Very few Americans understand that firsthand. And the reality is if that if you can't overcome that by camaraderie and cohesiveness, the trust and confidence that is built over a lot of time and a lot of activity, then you're going to have an ineffective unit. The thing that we have discovered destroys that the most comes down to, you know, favoritism, sexual relationships, favoring one over another. We already have problems where we mix young men and young women, and when we put young homosexuals together, you won't be able to distinguish one from the other. And then you end up with sort of a problem the Australians and the Brits are about to have and they try to prosecute all indications of sexual relationships like holding hands between a boy and girl. You know, we have to focus once again on the importance of military readiness. What is our military all about? It's about preserving peace and fighting wars when it's required.

MICHELLE BENECKE: And Margaret, I would say "don't ask, don't tell" don't pursue hurts military readiness. It hurts military readiness, because it's harassment and investigations that break down unit morale.

MARGARET WARNER: General Cerjan, what's your view on the military cohesion argument and whether letting homosexuals serve openly will affect that?

LT. GEN. PAUL CERJAN (Ret.): Well, I think that across the board, as Colonel Maginnis said, you have a cohesion issue in terms of whether or not soldiers, sailors, airmen, believe in their leaders and whether or not they're willing to go forward when the test comes to walk into the crucible. So I think the homosexuality issue affects that because, as we found out in so many instances that Michelle brought up, there is harassment out there and that needs to be stopped. We need to apply an even-handed policy as the policy was written. But the thing that bothers me is that when we start taking look at the readiness of the service and as General Coleman said to fight and defend and win the nation's wars, that means that we have to take every measure we can to insure that we have a combat-ready force.

MARGARET WARNER: But what are you saying exactly?

LT. GEN. PAUL CERJAN (Ret.): Well, we're becoming a social engineering agency and that's not what the military was intended to do.

MARGARET WARNER: I'm sorry, but we're almost out of time. I want to try and understand your point, General. Are you saying because there are straight members of the military who don't like homosexuals or find them distasteful or anathema, or whatever that that affects unit cohesion or not?

LT. GEN. PAUL CERJAN (Ret.): I think it does. I absolutely believe it does because you have to believe in your leaders and, you know, this whole idea that you die for your country has been proven to be incorrect. You die for the soldier that sits next to you in the foxhole. And you have to believe in, and there's a whole bunch of love-trust and understanding about what you're doing in terms of what you're doing in the unit. And so, consequently, I think it affects unit cohesion.

MARGARET WARNER: All right. General Coleman, address that point.

MAJ. GEN. VANCE COLEMAN (Ret.): I suspect that any differences between individuals could affect unit cohesiveness. Let's not just look at homosexuality. That happens and I saw that when I was a younger officer, it happens with people that just don't like each other. It happens for various reasons, not because of homosexuality. So you can't just use that to say that affects... you can't have it because it affects unit cohesion. If that were true, then I think a lot of other things that must be eliminated. I didn't like you again because you had red hair, I didn't know you because you were six feet tall or I didn't like you because you were heavy. I didn't like you because you were different than I am. That was the thing that the integration between blacks and whites back in the 1950s with President Truman. People had the same arguments then. We overcame that because we learned to trust and to respect each other. And I would say to you that prior to the leadership of the Army making homosexuality an issue, it was not an issue. Homosexuals fought side by side with straights. And there was no problem. It became a problem when the leadership made it a problem. General, I agree with you. It's a leadership problem, not a soldier problem.

MARGARET WARNER: All right, gentlemen and Michelle Benecke, we're going to have to leave it there. Thank you all four very much.

JIM LEHRER: Still to come on the NewsHour tonight; the Democrats debate; the Miranda debate; and Gatsby at the opera.

FOCUS - DEMOCRATIC DEBATE

JIM LEHRER: Last night Former Senator Bill Bradley and Vice President Al Gore answered questions during a forum at the University of New Hampshire in Durham. The moderator was Peter Jennings of ABC news. Here are some excerpts.

PETER JENNINGS: Mr. Bradley, Mr. Gore brought up this question of doing without television advertising. Can you tell us what you really thought in his last debate when he held out his hand to you?

BILL BRADLEY: Well, what I really thought is I said at the time that it was an interesting ploy, but he's reiterated tonight and I understand that's part of it, but, you know, the reality is that if you want to speak to people in their living rooms, you have to get to them in their living rooms. And if you know what you believe, you can communicate in 30 seconds. So I don't see that to be a problem.

PETER JENNINGS: Quickly, sir, if you wouldn't mind.

AL GORE: The great thing about New Hampshire is that you can actually go personally into the living rooms. And I've been enjoying that process. And both of us have had a chance to get around the state. And as for the idea that this is a ploy-- look, I'm not going to dwell on this, but hear what I said. It's a little bit different today, okay? I'm not saying that you have to agree to do away with these ads all over the country, where you say you're not as well known. I'm saying-- you pick any state. Pick any state. In New Hampshire, the polls say that you're ahead. I'm asking people to give me a come-from-behind upset victory here.

BILL BRADLEY: All right.

AL GORE: And I'm-- the only way this proposal would work for me is if both of us gave up the little 30-second, 60-second ads. That's part of what a lot of people don't like about our system. If we had to rely on actually being in the living rooms, if we had to rely on actually debating the details of the policies, not just once every while, but twice a week every week until the nomination is decided, I think we might have a chance to really elevate the tone of our democracy. I mean it, seriously.

BILL BRADLEY: You know, Al, your underdog pitch brings tears to my eyes.

AL GORE: Well, I hope that my upset victory brings tears to your eyes on February 3rd.

PETER JENNINGS: You get the next question for Mr. Gore - we're getting fairly close to the end.

BILL BRADLEY: Al - in 1993 - you and President Clinton supported national health insurance. We were $294-billion in debt and six years away from bankruptcy in Social Security-- in Medicare. And now are in a period of unprecedented surplus, and yet you have not proposed anything that comes close to universal coverage --not even universal access --my question to you is why not?

AL GORE: I am committed to providing universal high quality affordable health care to every single American. I had a couple of events today with the greatest champion of universal health care in the United States Senate, Senator Ted Kennedy. I plan to stand and work with him in reaching high quality health care for all our people... Both of us have proposed first step, which according to independent analyst he's cover roughly the same number of people. Some of the benefits that I have proposed go to all of the American people. The steps that I propose... Let me answer, if I could. The steps that I propose build on the strengths of the current system we have. I've devoted $374 billion to the solvency of Medicare. You have not devoted one penny to insuring the solvency of Medicare. And my question for you is, why not?

BILL BRADLEY: Let me respond to that because, Al basically said he set aside no money for universal coverage over his ten-year budget plan, no money to reach universal coverage. When I hear you talk, al, it reminds me of a Washington bunker. I think you're in a Washington bunker. And I can understand why you're in the bunker. I mean, there was Gingrich, there was the fundraising scandals, there was the impeachment problem. AndI think that the major objective in the last several years in the White House has been political survival. I understand that. But the reality is the Democratic Party shouldn't be in the Washington bunker with you. The Democratic Party should be thinking big things with big ambitions. We should cover health care coverage for everybody. We should say eliminate child poverty in this country. And we should have the leadership to get behind it and make it happen.

AL GORE: When Newt Gingrich took over the Congress, he proposed slashing Medicare, making terrible changes in a lot of the programs that helped the American people, privatizing part of Social Security. I'm proud that I stayed and fought against the Gingrich Congress. I am proud that I was where I think the American people needed a lot of folks to be-- fighting against that, preventing them from shutting down the government.

BILL BRADLEY: On your issue of stay and fight, I mean - quite frankly - I've been out talking to people in the country for the last two years, and quite frankly they think a lot of people in Washington stay too long and fight too much. And I look at this and I say, what is leadership in this country? Leadership is taking a big national problem-- like FDR did, like LBJ did-- and turning it into a public issue, and then engaging in idealism of the American people to make it happen. That is leadership. We both have experience... The question is: Who has the leadership to get these big things done for the country?

PETER JENNINGS: Mr. Bradley, Mr. Gore-- Mr. Gore, I apologize - I take no pleasure in cutting either of you off, but we have come to the end of our allotted time.

JIM LEHRER: Later tonight, the Republican candidates will meet at the University of New Hampshire. We plan to have excerpts of that debate, plus analysis of both by Shields and Gigot, tomorrow evening.

FOCUS - REVISITING MIRANDA

JIM LEHRER: Now, Gwen Ifill has the Miranda rights story.

GWEN IFILL: Four sentences repeated so often on cop shows and in movies that Americans assume they are an essential protection. "You have the right to remain silent. Anything you say can and will be used against you. You have the right to talk with a lawyer before being questioned and to have the lawyer present during the questioning. If you cannot afford a lawyer, one will be provided for you before questioning begins." This is the Miranda warning dating from the 1966 Supreme Court decision in Miranda versus Arizona. To supporters, Miranda is a safeguard against police abuse; to opponents, a spoiler in hundreds of thousands of criminal cases every year because if the warning is not given or given improperly, a defendant's confession can be thrown out. The Supreme Court agreed earlier this month to take up a challenge to Miranda from Maryland. In it, an accused bank robber's confession was excluded in his trial because police gave him the Miranda warning after they questioned him, not before.

Two perspectives now. Paul Cassell, a university of Utah law professor, has been a long time advocate to loosen the Miranda requirement. He will argue the case before the Supreme Court. Steven Shapiro is a legal director of the American Civil Liberties Union, and favors keeping Miranda protections in place.

Mr. Cassell, what is wrong or right with the Miranda protections as they now stand?

PAUL CASSELL: Well, there are some things that are right. Giving Miranda warnings has not proven to be a problem. What has proven to be a problem is the exclusionary rule feature of Miranda. That is the feature that throws out perfectly voluntary confession. For example, in this case, all the courts have agreed that Mr. Dickerson's confession is voluntary, and yet now for two and a half years there's been litigation over "what time did he give his Miranda warning?" Congress has said, "let's let in perfectly voluntary confessions." And that's what I'm optimistic the supreme court will uphold.

GWEN IFILL: When we speak about Mr. Dickerson, we're talking about the Maryland case.

PAUL CASSELL: That's exactly right, yes.

GWEN IFILL: Mr. Shapiro, what about you? What do you think is wrong or right? What should be upheld in the Miranda warning?

STEVEN SHAPIRO: Well, I think the Miranda decision itself ought to be upheld. And you know, Gwen, it's odd to me that this controversy has even arisen, because Miranda really is a win-win situation. It gives the police a clear set of rules to follow. If anything, it makes it easier to admit confessions at trial, as long as the police obey the rules. It is fair to defendants because it informs them of their rights. It protects the basic Fifth Amendment right against self- incrimination. And it promotes a sense of fairness, integrity in the criminal justice system. And so, unlike Paul, I'm actually quite optimistic that this Supreme Court will reaffirm the core of the Miranda holding.

GWEN IFILL: Mr. Cassell, your argument, as I understand it is that, at least in part, that there are so many technicalities that Miranda is used as a technicality to throw cases out. What evidence is there of that?

PAUL CASSELL: Well, there's substantial empirical evidence, that over the 50 years, Miranda's had a devastating effect on law enforcement. If you look at crime clearance rates-- the rate at which police officers solve crimes-- from 1950 to 1965, it was about 60%, but then fell dramatically after Miranda. And if you work through the numbers, as I have with some econometricians, it turns out that about 70,000 violent criminal cases each year go unsolved because of Miranda. And so it's not a win-win situation, at least if you're willing to go beyond the groups that the ACLU looks at, and look, for example, at victims of crime who are typically poor or racial minorities, residents of inner cities. They're the ones who lose because of Miranda. Criminals are set free and set free to commit their crimes again. That's the problem with Miranda, and that's why I think the Supreme Court will take a hard look at correcting some of the excesses of the decision.

GWEN IFILL: Mr. Shapiro, your chance to pony up a little evidence, exactly what evidence is there that defendants' rights would be compromised without Miranda?

STEVEN SHAPIRO: Well, let me just respond to something that Paul has just said because he has spent a lot of time promoting this statistic that he just described, and the fact is that there is considerable dispute within the academic community about the validity of those statistics. And rather than get into a fight here or an argument between academics or between lawyers, I think the most powerful fact in this case is that the Justice Department on behalf of the FBI and behalf of the Bureau of Alcohol, Tobacco, and Firearms, behalf of IRS, on behalf of the entire federal law enforcement structure has filed a brief in this case asking the court to uphold Miranda. And it just defies imagination to think that the federal government and the federal law enforcement would be filing that brief if it thought it had... Miranda had the consequences for law enforcement that Paul just described. In fact, the overwhelming proof is that Miranda has not resulted in guilty criminals... significant numbers of guilty criminals going free. And what it does do is protect against the abuses that the Supreme Court saw for decades in coerced confession cases before it announced the Miranda rule in 1966.

GWEN IFILL: What about the constitutional underpinnings of this case, Mr. Cassell? You'll be arguing this in front of the court. They argue... the Constitution does guarantee a right to remain silent. Is that enough?

PAUL CASSELL: Well, as the Court has repeatedly said about Miranda rights is that they're not constitutional rights. They're simply safeguards that the Court has created. And one of the little-known facts about Miranda is that Chief Justice Warren, himself, in the Miranda opinion invited Congress to come in and adopt alternative approaches for dealing with this problem. So the law that we're talking about here-- the voluntary confessions law-- was enacted at the express invitation of Congress. And I think also, we're going to see considerable support for the law throughout the law enforcement community. It's true that the politically driven brief filed by the Justice Department supports Miranda, but the career people in the Justice Department-- the criminal division, US attorneys around the country-- support the position I'm arguing. The National District Attorneys Association supports it. Many of the nation's largest law enforcement groups support it as well. So, when you talk about where rank and file law enforcement officers are, what they say is, "look, we'll continue to give Miranda warning, but don't throw out a perfectly voluntary confession because there's some technicality involved or technical question about how it was obtained."

GWEN IFILL: Well. That leads exactly to the next question here, Mr. Shapiro: If someone confesses to a crime, actually says, "yes, I did it," and it's someone who you have every reason to believe did do the crime, why should that be thrown out?

STEVEN SHAPIRO: Well, in many circumstances, it is not going to be thrown out. It will not be thrown out if somebody confesses before the police interrogate them; it will not be thrown out if the police give the Miranda warnings before interrogating them. But as you said before, quite properly, Gwen, we do have a constitutional principle that says people have the right to remain silent. And in our system, the government cannot force you to give evidence against yourself. And if that is the constitutional rule, I don't see any basis for objecting to a principle that says people have a right to be informed of their rights. Do we really want to live in a system and live in a society in which the law enforcement depends upon keeping people ignorant of their rights? And let me just say, I don't think you can dismiss the Justice Department brief in this case as politically driven. The fact of the matter is, the law that is now before the Supreme Court was enacted in 1968; it has not been relied on by a single administration, Democrat or Republican, in the intervening 30 years. This is not an issue of politics, this is an issue of constitutional law. And if Miranda were not, in fact, a constitutional ruling, the Supreme Court could not have applied it against the states, as it did in Miranda and as it has done in many cases subsequently. And while it is true that Chief Justice Warren said in Miranda that there's nothing magical about the words and that Congress and the state legislatures could adopt equally effective safeguards to protect the Fifth Amendment right against self-incrimination, that is not what Congress did in the statute. Congress did not adopt any safeguard at all. Instead, it went back to a general test of voluntariness, which was precisely the test that the Supreme Court had rejected in Miranda. So what you have here now is a situation where Congress has purported to overrule the Supreme Court's interpretation of the Constitution, and that is something that Congress does not have the authority to do in our system.

GWEN IFILL: Mr. Cassell, Mr. Shapiro just referred to Earl Warren's reference to there not being any magic in the words, but certainly Americans have gotten used to the idea that these words represent some sort of protection of their basic rights. How do you argue that that's not true?

PAUL CASSELL: Well, I argue, in fact, it is true. And you'll actually see many of those same words in the law that I'm defending. Congress passed a law that included many of the same rights that are included in the Miranda opinion. And so what you find in the law itself, voluntary confessions law, is that the evidence can be used if police officers give warnings, and to look at all of the factors. So police officers are going to continue to give warnings if this law is upheld. That's not an issue today. What is an issue is whether a perfectly voluntary confessions from indisputably guilty criminals can be thrown out because of some technical issue. It's simply not the case to say, as Steven has, that no administration has ever relied on this law. In fact, if you go back as far as 1969, you'll find that the Nixon administration litigated this law all over the country. In 1975, the Tenth Circuit out here in Denver, upheld the law. So, it has been used actually for about 25 or 30 years. It was even used during the start of the Clinton administration. They've just made the political decision not to enforce this act of Congress. I'm confident that the Supreme Court will agree that this is a constitutional law.

GWEN IFILL: It seems that we keep coming back to the question of voluntary versus coerced confessions. Mr. Shapiro, how exactly and who gets to decide what a voluntary confession is-- something someone says of their own free will-- and what a coerced confession is, that presumably law enforcement officials forced out of someone?

STEVEN SHAPIRO: Well, ultimately it's the courts that decide. And one of the things that produced the Miranda rule was, in fact, the difficulty of determining whether a confession is voluntary or a confession is coerced, given what the Supreme Court described as the inherently coercive atmosphere of custodial interrogations-- station house interrogations. So what you have pre-Miranda, is you have litigation in case after case after case, where courts were required to look at whole range of factors to decide whether or not the confession was voluntary. You had more litigation, you had less certainty, you had more confusion, not only on the part of the police, but on the part of judges and criminal defendants. Miranda really simplified and rationalized the system which is why many, many law enforcement professionals-- Paul's comment notwithstanding-- support Miranda, believe it is professionalized law enforcement, and believe it has in fact made it easier for them to operate and have valid confessions admitted into evidence. Nobody's against the use of uncoerced, voluntary confessions. Miranda is designed to ensure that the confessions that get into trial are in fact voluntary and uncoerced.

GWEN IFILL: Mr. Cassell, if you make your case before the Supreme Court, you argue that people will still continue to give the Miranda warning. If you don't make your case against the Supreme Court, the chance is that the Supreme Court will uphold the law as it currently stands. So, why is this at the Supreme Court? Why does this have to be argued?

PAUL CASSELL: Well, I think the key issue is exactly what Steven just said-- should a perfectly voluntary confession be thrown out. He said that no one would argue against that. In fact, in this case, Mr. Dickerson's lawyer-- the case out of Maryland-- Mr. Dickerson's lawyer is arguing to throw out this confession that all the courts have found to be voluntary. And that raises fundamental questions about our criminal justice system: Are we going to make the search for truth the overriding and central focus of criminal justice? For too long, we've diverted our attention. We've looked at some of these side issues, these side issues and ancillary questions. This case presents an opportunity for the Supreme Court to clearly say, "we're going to make the search for truth the key issue, and we're going to give juries all reliable evidence to make that decision."

GWEN IFILL: Steven Shapiro, Paul Cassell, thank you both very much.

PAUL CASSELL: Thank you.

FINALLY - OLD STORY, NEW MUSIC

JIM LEHRER: Finally tonight, Gatsby goes to the opera. Paul Solman of WGBH-Boston reports.

PAUL SOLMAN: At the Metropolitan Opera this holiday season, bridging millennia old and new, the world premiere run of F. Scott Fitzgerald's "The Great Gatsby," as set to music by Pulitzer Prize and MacArthur Genius Grant Winner John Harbison. Musically the opera itself bridges old and new. Spreading the score are 1920s-style dance songs by Harbison , lyrics by Murray Horowitz. But the music that dominates the opera is thoroughly modern. Gatsby was a big deal commission, an opera to honor Conductor James Levine's 25th anniversary at the Met. Add a glitzy past headed by soprano Dawn Upshaw and tenor Jerry Hadley and you pretty much have the opera event of the season.

JERRY HADLEY, Tenor: What a better way for us in America in the operatic world to end the century than the bringing to the operatic stage of a 20th century American icon. And so, in that sense, in a global sense, I think it's a big deal. For me personally, I mean this is one of the kinds of roles that people die to do their whole lives.

PAUL SOLMAN: Jerry Hadley plays Jay Gatsby, shady, self-made mogul whose thing for old flame Daisy Buchanan has driven him to stalk her in style though from afar -- a mansion that overlooks hers on Long Island's Gold Coast. (singing in background) Not that Gatsby's gaze goes unrequited. Daisy married a big bucks blow hard when Jay went off to war but she's been pining for Gatsby ever since. Dawn Upshaw says she tries to make this feeling among others palpable when she sings her lines.

DAWN UPSHAW, Soprano: For instance, when Gatsby comes into the room and she sees him for the first time after five years, the music is written...

DAWN SINGING: I see Gatsby. I'm certainly glad to see you again.

DAWN UPSHA: I was talking to John Harbison about this because he was talking about the importance of rhythm here to show the formality and a bit of the stiffness so that if you were saying, -- who I -- Jay Gatsby, I'm certainly glad to see you again, -- and you're too free with it, it shows too much comfort.

(singing in background)

PAUL SOLMAN: Upshaw finally gets to open up when Daisy's secret love for Gatsby is revealed. But the opera's show stopper is entrusted to Upshaw's mezzo soprano counterpart, Lorain Hunt Liberson. Hunt Liberson is make her met debut as Myrtle Wilson, the downscale dame with whom Daisy's rich husband is having a fiery fling.

LIBERSON: (singing) I could not keep my eyes off him...

LORRAINE HUNT LIBERSON, Mezzo Soprano: My music is very bluesy. I feel like I'm making my blues debut here at the Met. (Laughing) So it doesn't feel appropriate to sing it in kind of a European operatic style. I wouldn't sing it the same way I would sing Mozart or Handel or Belios or anything.

PAUL SOLMAN: Classical roles are what Hunt Liberson is known for, but Myrtle Wilson demands a 20th century style, as she explains in song why she has decided to stray from her marriage.

LORRAINE HUNT LIBERSON: (singing part of Myrtle Wilson) You can't live forever you can't live forever.

LORRAINE HUNT LIBERSON: Now, I could sing it in a... I mean it's not... That's not a pop style. It's not a real bluesy style. It's sort of something in between. Now, another way, a more kind of formal way:

(singing) You can't live forever you can't live forever -- that's how I don't want to do it, how I don't think it sounds right for this opera. Actually, these things probably should be allowed in any kind of opera performance, but maybe because it's so clear to us in terms of the style of the scene and also because it's our own language which makes a huge difference, we take greater liberty with it.

PAUL SOLMAN: So Harbison's Gatsby is full of new music sung in new ways. For its big moments it relies on the old operatic themes: Lust and longing, love and loss, murder and madness. These themes are in part what made The Great Gatsby alluring to Harbison in the first place, adding to its appeal Princeton, F. Scott Fitzgerald's alma mater. Harbison, who literally grew up at the university, comes from a long line of Princetonians. His father on the right taught there. His great uncle was a classmate of Fitzgerald's. Hooked on the book in high school, Harbison reread Gatsby in the early '80s and began putting its plot into the dialogue of opera. The great challenge: How to transpose Fitzgerald's famous writing style.

JOHN HARBISON, Composer: The most beautiful language in the novel is not in the characters' mouths; it's in the transitional and connective and descriptive material. And it's only occasionally that that can be moved over into the characters' speeches themselves.

PAUL SOLMAN: So it's the music that captures that.

JOHN HARBISON: Yes. The music has to step in.

PAUL SOLMAN: You can hear Harbison's musical version of Fitzgerald's in the opera's opening moments. (music in background)

JOHN HARBISON: The beginning of the overture is music associated with the sort of dramatic longing of Gatsby's situation, his kind of great plan for his life, for winning Daisy back, but also the inherent danger. (music in background) This piece is about someone who has thrust himself into a very risky, perilous quest.

PAUL SOLMAN: A quest, it seems not unlike that of the contemporary composer, who hopes to get his opera into the permanent repertoire. One can only hope his struggle to rise above the crowd won't be as futile of that as Myrtle Wilson, married to a poor man, shooting for a rich one.

CHARACTER MYRTLE WILSON SINGING: Take me

PAUL SOLMAN: As for the opera's real chances, the person who commissioned, Maestro Levine, is cautiously optimistic.

JAMES LEVINE, Artistic Director, Metropolitan Opera: It's been very well sold for its initial theories. That's a very good sign because that means there's a lot of interest to start with before anyone passes judgment on the piece. Whether it stays in the repertoire, I find, has less to do with hasty judgment than it has to do with the artist's belief in the piece.

PAUL SOLMAN: James Levine has ruled the rostrum at the met for a quarter century and knows how hard it is to create an appetite for modern music when audiences can feast on Mozart instead. He thinks almost any new artwork needs repetition before an audience really gets it. And that means the artists themselves must make the case.

JAMES LEVINE: First of all, the musicians have to love and believe in the piece and keep trying to find ways to schedule it, to perform it. Then audiences gradually notice that that is happening and they want to know this because they know that the people who are immersed in music all day are interested in it and want to put it before the public.

PAUL SOLMAN: So if you love it enough, you can keep it here?

JAMES LEVINE: I think so.

PAUL SOLMAN: And then you'll get people to think that this must be good enough because Levine keeps putting it in here and listen to it differently.

JAMES LEVINE: Well, at least they give me a chance when they trust me that I can take them on a journey they haven't been on before and maybe they won't love every one, but maybe life gets more stimulating that way because, let's face it, there has to be... I mean, the art form would die if all it was, was repeating something with which we were already familiar.

PAUL SOLMAN: Meanwhile back on stage, Myrtle has decided to leave her husband for her lover. But as operatic state would have, Myrtle is struck and killed by her lover's car driven by his wife, her rival, Daisy. (music in background) Gatsby, who was riding shotgun, chivalrously takes the rap, leaving Myrtle's stunned spouse in the end to wreak murderous revenge. (music in background) Though early reviews were mixed, the "New York Times" called it the victim of the inflated expectations surrounding it, Harbison's Gatsby has received for an opera a huge amount of attention. And for director Mark Lamos, at least, that is further evidence of encouraging uptick in the market for modern music.

MARK LAMOS, Director: I think one of the healthy things is more companies commissioning living American composers to write new operas is that we're not going to be looking at everything to enter a pantheon. I do a new opera at the opera theater in St. Louis, the place is packed. They're ready for an adventure. You know, and you think, wow, St. Louis, good for you - you know, six performances, eight performances. They're eagerly accepting a new work without having heard it before, without having a recording to study, without really knowing much more about it than they do when they just sit down and hear it the first time. That's saying a lot about American culture right now.

PAUL SOLMAN: But if impatient audiences don't give it a chance or "The Great Gatsby" simply fails to achieve operatic immortality, perhaps it -- like the rest of us -- can take some solace from the immortal words of Myrtle Wilson.

RECAP

JIM LEHRER: Again, the major stories of this Thursday: Hundreds of Cuban-Americans protested the decision to send a 6-year-old boy back to his father in Cuba; and President Clinton returned to the Israeli-Syrian peace talks to try to accelerate the pace of negotiations. We'll see you on-line, and again here tomorrow evening with Shields and Gigot, among others. I'm Jim Lehrer. Thank you and good night.