The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight an update on the Texas storm and the Atlantic hurricane; a four-way discussion of the anti-terrorism drive called the War of the Future; a Betty Ann Bowser report on the debate about how the Census Bureau should do its counting; and a look at the impact of former Supreme Court Justice Lewis Powell, who died today. It all follows our summary of the news this Tuesday.% ? NEWS SUMMARY

JIM LEHRER: Hurricane Bonnie headed toward the Carolinas tonight. It's expected to hit land tomorrow morning. Some 500,000 tourists and residents were ordered to evacuate coastal areas of North and South Carolina. Already the storm was churning up eight to ten foot swells. The National Hurricane Center reported the storm was 225 miles offshore, advancing at 16 miles an hour. It had sustained winds of 115 miles an hour. Hurricane warnings and watches are in effect from Georgia to Delaware and into the Chesapeake Bay. Federal Emergency Management Agency Director James Lee Witt urged people to follow evacuation orders.

JAMES LEE WITT, Director, FEMA: The only thing is they'll want to caution people out there to take this hurricane seriously. It's a very strong hurricane, and if you have been ordered to evacuate, you need to heed those orders, because you can always replace material things, but you need to take in consideration the safety of yourself and your family and everyone.

JIM LEHRER: Meanwhile, tropical storm Danielle was upgraded to a hurricane. It was one thousand miles east of the Virgin Islands, heading Northwest at 21 miles an hour. There was more rain and flooding in Southwest Texas today. At least six people have been killed in Del Rio, 145 miles west of San Antonio. Five others died elsewhere in Texas, three more in Northern Mexico. Eighteen inches of rain fell in the past 24 hours, and another five were expected today. Governor Bush sent National Guardsmen, trucks, and helicopters to help search and rescue operations. We'll have more on both weather stories right after this News Summary. Seven Cuban-Americans were indicted today on charges of plotting to kill Cuban President Fidel Castro. The indictment was returned in San Juan Puerto Rico and announced by the Justice Department in Washington. It's part of a continuing FBI and Custom Service investigation. The men allegedly planned for four years to assassinate Castro. Overseas today a bomb exploded in a restaurant in Cape Town South Africa. Police said one woman was killed, twenty-four others were wounded. A group named Muslims Against Global Oppression claimed responsibility in a call to a local radio talk show host. The caller said the bombing was in retaliation for U.S. missile strikes on suspected terrorist targets in Sudan and Afghanistan. The restaurant is a franchise of the Planet Hollywood owned by several movie stars. It's located in Cape Town's waterfront tourist area. Presidents Clinton and Yeltsin spoke by telephone today about the ruble crisis and other matters. The call came in advance of Mr. Clinton's trip to Moscow next week. The Russian currency posted its sharpest one-day decline in more than four years today, losing 9 percent of its value. Trading was halted twice when the central bank was overwhelmed with demand for U.S. dollars. At the Kremlin, newly reappointed Prime Minister Chernomyrdin spoke with several political parties, including the communists, about forming a consensus government. In Northern Ireland today British Prime Minister Tony Blair said he's recalling parliament so it can take up stricter anti-terrorism laws. The proposals include one that allows suspected gunmen and bombers to be jailed on the strength of a single police officer's testimony. Blair spoke in the town of Omagh, where a car bomb killed 28 people earlier this month.

TONY BLAIR, Prime Minister, Great Britain: Of course, measures in respect to security can be a scant consolation to those who have been the victims of this appalling terrorist outbreak. But we have the determination, not just here but in the Irish Republic too, to take whatever measures we can to bring those responsible for justice. And more than that, we have a political protest that has the overwhelming support of the majority of people everywhere.

JIM LEHRER: The Republic of Ireland's parliament will also consider tougher anti-terror legislation in an emergency session early next month. The Irish Republican Army's political wing, Sinn Fein, said today Blair's proposals were an overreaction to the Omagh bombing. In the Democratic Republic of the Congo today warplanes from Zimbabwe and Angola bombed rebel-held cities in the West. A rebel spokesman said hundreds of civilians died in theattacks. The fighter jets, joined by helicopter gunships, were there to aid Congolese soldiers loyal to President Kabila. Lewis Powell died today of pneumonia at his home in Richmond, Virginia. The retired Supreme Court justice was 90 years old. President Clinton Nixon appointed him to the high court in 1971. He retired 15 years later. We'll look at Justice Powell's life and legal career at the end of our program tonight. Between now and then a bad weather update, the war against terrorism, and counting Americans.% ? UPDATE - STORMY WEATHER

JIM LEHRER: A flood in Texas, a hurricane in the Atlantic, and to Phil Ponce.

PHIL PONCE: On Sunday what was left of Tropical Storm Charley made its way inland. As it swept in from the Gulf of Mexico, it flooded parts of South Texas and left much of the town of Del Rio underwater. The human toll: At least 14 dead and scores missing. The storm dumped close to 18 inches of rain in four hours on Del Rio, a town of 34,000, about 140 miles west of San Antonio and close to the Rio Grande. This area had been in the midst of a drought. Before this, Del Rio had reported only five inches of rain this year. The water rose so fast residents barely had time to get out of their homes.

MARCUS CARDENAS: We're just hoping it doesn't reach our second floor. That's where we stored all of our storage and our goods, our household, and all that.

PHIL PONCE: The Rio Grande, which forms the border between Texas and Mexico, spilled over its banks and became a mile-wide swell of water. The flood also hit Eagle Pass, some 50 miles down river from Del Rio. The high water is expected to hit Laredo, another 125 miles away, by tomorrow. Local police, the Texas Department of Public Safety, and the Border Patrol helped rescue residents. Governor George W. Bush sent 150 National Guardsmen with trucks and helicopters to lend a hand. But today officials still fear the rising levels.

PAT MANCHA, U.S. Border Patrol: These creeks keep going up-and they have come down, and they seem to go back up.

PHIL PONCE: In the meantime, rescuers continue to search for the missing.

CAPTAIN FREEMAN VICKERS, Del Rio Police Department: In some areas the creek bed spans out over a mile wide. There's a lot of debris piles, cars, parts of homes and structures that have to be searched through. We're looking for any body or any thing.

PHIL PONCE: A short time ago I spoke about both the Texas rains and Hurricane Bonnie with Jerry Jarrell, director of the National Hurricane Center in Miami.

PHIL PONCE: Mr. Jarrell, let's talk about Texas first. Explain how an area goes from complete drought to heavy flooding?

JERRY JARRELL, National Hurricane Center: Well, it takes a tropical cyclone a lot of times to do that. A tropical cyclone is a marine cyclone. It sucks up the water off of the ocean floor and once it goes ashore, it has to drop that water somewhere. A month or two ago we would have loved to have had that kind of rain in Texas. Unfortunately, when we got it, they had already had rain, and so it caused massive flooding out there. And the timing was very bad on that one.

PHIL PONCE: Mr. Jarrell, Tropical Storm Charley has now been downscaled to a tropical depression. How long can lingering rains from a tropical depression continue?

JERRY JARRELL: Well, we've seen them linger out there for a week or more in Texas. It seems to me the only place that they hang around forever, but I wouldn't be surprised to see it still a few more days out there, as much as I hate to say that.

PHIL PONCE: Mr. Jarrell, the Del Rio area is several hundred miles from the Gulf of Mexico. Is it unusual for a tropical storm to have an impact that far inland?

JERRY JARRELL: It is, but it isn't unheard of. We've had storms that go across the Gulf Coast and end up in Canada, still causing heavy rain, so it can happen, but it is unusual; you're right there.

PHIL PONCE: Moving on to Hurricane Bonnie, what's the latest?

JERRY JARRELL: Well, Bonnie's about 290 miles South of Cape Lookout, North Carolina, and we think it will go ashore probably around noon tomorrow, but it is so large that probably around midnight strong winds will already arrive on the coast. Hurricane force winds will probably arrive somewhere around daybreak tomorrow, so it's so big that it's going to-it may be as much as a day getting over people there, getting across people, so it's going to be an awfully miserable time coming up for those folks out there in Eastern North Carolina, particularly on the outer banks.

PHIL PONCE: And so you think it's the outer banks that's going to be taking the brunt of the storm?

JERRY JARRELL: I think they are, because we think it will go just to the west of them, and so they'll be on the wrong side, the worst side of the storm, and they'll be getting the huge not only waves but the tides will be as much as ten or twelve feet above normal, which means all the roads will be underwater, and many homes will be destroyed out there, either by the water or the battering waves on top of the water. So it's not a time you'd want to be out there, and fortunately, there will be very few people left there. They should have evacuated by now.

PHIL PONCE: So you're predicting a fairly-a fairly strong storm, when you're talking about property damage and all that?

JERRY JARRELL: Absolutely. It is a major hurricane. It has 115 miles per hour maximum winds, and it's capable of doing major damage out there.

PHIL PONCE: Predicting-you alluded to the evacuation that's taking place in-on the outer banks-how hard is it to predict where the brunt of a storm is going to hit, to give people a chance to make their plans to get out of the area?

JERRY JARRELL: With this storm it's been very difficult, because it stopped. It stopped down south of there for about, oh, a day and a half, and once a storm has stopped, it becomes very difficult to predict. We have the nice atmospheric models, which usually do a yeoman job for us, but in this case, they were giving us practically every answer from west to east on the track through north and so it becomes a little bit of a guessing game and kind of a stubbornness game. We have to sort of stick with-stick with what we believe, even though we're being given conflicting information. So it does become very difficult.

PHIL PONCE: You talk about the-about the possible intensity of the storm. How about the duration of it?

JERRY JARRELL: I'm sorry, I didn't understand.

PHIL PONCE: You talked about how strong the storm might be, but how long might it last, the duration of the storm, the life span of the storm?

JERRY JARRELL: Well, these storms last a week or ten days, but I think what you're after is when it goes over an individual home or over a place on the map, it takes it about a day to get over, because it is so huge, and it's not moving particularly fast, so it may be twenty to twenty-four hours passing someone. So it's going to be a long time of misery out there.

PHIL PONCE: And last question: Any connections between Tropical Storm Charley in Texas and Hurricane Bonnie as far as the big weather picture?

JERRY JARRELL: The only thing that they have in common is that they both originated from disturbances that came off Africa. There's much more commonality between Bonnie and the D-storm-Danielle-that's coming up behind it, the hurricane behind it. They both are following pretty much the same track-a different track than Charley followed.

PHIL PONCE: And so what do you think it's going to do when it hits North Carolina?

JERRY JARRELL: Well, I think it will then go through North Carolina, coming out around Hampton Ridge, Virginia, and then probably make a hard right turn and go back out into the Atlantic.

PHIL PONCE: Mr. Jarrell, thank you very much.

JERRY JARRELL: My pleasure.

JIM LEHRER: Still to come on the NewsHour tonight: the war of the future, counting Americans, and remembering Justice Powell, who, of course, was appointed to the high court by President Nixon, not President Clinton, as I said a moment ago.% ? FOCUS - WAR OF THE FUTURE

JIM LEHRER: Kwame Holman begins our war of the future story.

KWAME HOLMAN: The bomb that exploded today inside the Planet Hollywood restaurant in South Africa was the first declared response to the latest American campaign against terrorism. A local organization in Cape Town claimed responsibility for the blast that killed at least one person and injured dozens at the U.S. franchise restaurant. The group said the attack was in retaliation for the U.S. strike last week. On Thursday, the United States launched Cruise missiles against alleged terrorist targets--a chemical plant in Sudan and suspected training camps in Afghanistan. The attacks were aimed not at those countries but at the network of a man who had declared war on the United States and American interests around the world--a Saudi millionaire named Osama bin Laden.

PRESIDENT CLINTON: Our target was terror. Our mission was clear: to strike at the network of radical groups affiliated with and funded by Osama bin Laden, perhaps the preeminent organizer and financier of international terrorism in the world today.

KWAME HOLMAN: In the days that followed, top level administration officials said the Thursday attacks represented a new kind of American war against terrorism.

MADELEINE ALBRIGHT, Secretary of State: I think it's very important for the American people to understand that we are involved here in a long-term struggle. We have been affected by this before. This is, unfortunately, the war of the future, and I think that we have to understand the importance of having a sustained operations here.

KWAME HOLMAN: National Security Adviser Samuel Berger offered an explanation on the Newshour Friday.

SAMUEL BERGER, National Security Adviser: What we did on Thursday is to say that while we need a course to defend ourselves, to harden our embassies and protect ourselves, you can't fight this enemy simply on defense. You have to also be prepared to go on offense, as well as, where we believe it's appropriate.

KWAME HOLMAN: On the weekend news programs, U.S. officials described the scope of the new effort.

WILLIAM COHEN: This terrorist network has declared war against the United States, and they had intended to carry out a series of attacks against Americans wherever they could find them. And so we're going to face this particular threat, and we are going to deal with it effectively.

MADELEINE ALBRIGHT: We are involved in really a long-term struggle here with terrorist forces and this is but one stage in it. And I think we have to understand that this is a long-term problem for the United States and the civilized world.

KWAME HOLMAN: Since the late 1960s, the United States has faced and occasionally retaliated against terrorist attacks overseas, from airliner hijackings to assaults on U.S. embassies, to the killing of soldiers. And since the 1993 attack on the World Trade Center, the U.S. also has had to counter terrorism within its own borders. In the last few days, even as the new war against terrorism was being launched, the U.S. Government was taking steps overseas and at home to deal with some of its potential consequences. The staffs at three U.S. embassies, including the one in Pakistan, were scaled back and the State Department issued travel warnings to Americans overseas. And in Washington, security was stepped up around government buildings and even some national monuments.

JIM LEHRER: And to Margaret Warner.

MARGARET WARNER: We get four views now. William Perry was Secretary of Defense during President Clinton's first term. Paul Bremer was ambassador-at-large for counter-terrorism at the State Department during President Reagan's second term. Robert Oakley directed the State Department's Office of Counter-terrorism in the Reagan administration. And Charles William Maynes was Assistant Secretary of State for International Organization Affairs during the Carter administration.Amb. Oakley, is the attack we saw today in South Africa, is that the kind of thing we should come to expect if we're going to engage in a high-profile war against terrorism?

ROBERT OAKLEY, Former State Department Official: I suspect this was an isolated event by someone who wanted to improve the image of their organization by claiming it's hooked to bin Laden, but, yes, this is the sort of thing one can expect, and we have to be prepared for it, and I think we are reasonably well prepared for it. But, above all, we have to get other governments to work with us in order to prevent this from happening.

MARGARET WARNER: Amb. Bremer, you've heard the administration, various administration officials call this a new war on terrorism, but as the resumes of all of you indicate, we've been fighting this war for quite a while. What's new about this phase?

L. PAUL BREMER, Former State Department Official: I don't think it's a new war, especially since I'm not aware that we ever had a peace with the terrorists. It's a continuation of a war. What is new now is that we are seeing less involvement directly by states in terrorism and more involvement by autonomous or free-lancing groups, who don't have the same pressure points that states have, and, therefore, it makes it a more complicated battle for us.

MARGARET WARNER: Explain that. What do you mean by the same pressure points?

L. PAUL BREMER: A state, for example, has diplomatic and political and commercial interests, which are vulnerable to concerted international pressure. A guy like bin Laden doesn't care about embassies, whether people withdraw their ambassadors. He's not worried about his trade deficit at the United States. We don't have very many political and economic things we can do directly to him. And we're sort of forced towards the sharp end of the stick, if you will, that is to say, covert action and military force when we deal with a guy like him.

MARGARET WARNER: Secretary Perry, would you agree with that assessment of how the war on terrorism has changed?

WILLIAM PERRY, Former Secretary of Defense: (Stanford) Well, first of all, I think we're going to see many more attacks of the conventional type, using car bombs, pipe bombs, truck bombs, typically against soft targets. Now, I'm more concerned about the introduction of weapons of mass destruction, nerve gas and anthrax. In my judgment it's not question of whether but when and where. And we may also see attacks on our cyber networks, that is, the information infrastructures, which control our communications, transportation, power networks, and we may even seen the introduction of nuclear bombs. So what is changing is the intensity and scale of the attacks, and I'm very much concerned about that. And that means that we have to increase the intensity and scale of our defensive efforts.

MARGARET WARNER: And when you say soft targets, what do you mean?

WILLIAM PERRY: Targets which have not been protected. The bombings in West-in Eastern Africa, for example, were against embassies that did not have all the protection measures recommended by the Inman Commission, therefore, they were relatively soft, easier targets. As we harden more and more targets, make them harder to bomb, then the terrorists will turn to other targets. In a society, an open society such as ours, we're just fundamentally vulnerable. We cannot protect every restaurant, every government building around the world.

MARGARET WARNER: Bill Maynes, what do you see as new about this war now?

CHARLES WILLIAM MAYNES, Former State Department Official: Well, I think the others have identified it as the fact that we thought in the past that some governments were directly funding, directly encouraging, even directing various terrorist groups. Now they're acquiescing in their presence, in their country, but I would point out that the terrorists we're after are basically in what you might call fatal societies, or societies that are on the verge of failure. So that also makes it difficult to bring pressure on those governments, because the governments basically don't control anything more than the capital city or maybe even a couple of buildings inside of it.

MARGARET WARNER: So then do you agree with the premise Amb. Bremer said that because it's no longer state terrorism but it's an individual, that in a way we have to, I think his phrase was "sharpen our use of covert action" and steps like that?

CHARLES WILLIAM MAYNES: Well, I don't think we can rule them out, but I think it would be a mistake if the United States had as its main response to terrorism surprise attacks, almost, you know, mini Pearl Harbors against states that were-that happened to have a terrorist group in their country. I think we have to fight to keep this a state-to-state issue and hold states responsible for the activities of groups that are on their territory. And I think we should be not only working on those states but on neighboring states to bring pressure on them.

MARGARET WARNER: What do you think, Amb. Oakley, this war calls for now? And is it different from the past?

ROBERT OAKLEY: Well, in some ways it's not different from the past. Remember that Lebanon was almost as much of a no-man's land in the 1980's as Afghanistan is now. You had terrorists from all over the world who were taking refuge and operating out of Lebanon. But we used a combination of things during the late 1980's-we used occasionally a military attack on Libya-we used a lot of very good intelligence work. We were able to get other governments to work with us in disrupting-first identifying and then disrupting the terrorist networks. But, above all, we have to give other governments an incentive to work with us. We have to show that we're attentive to their problems at the same time they're going to help us with our problems.

MARGARET WARNER: What do you mean?

ROBERT OAKLEY: Well, for example, one of the things which helped us bring an end to terrorism-not an end but a sharp reduction in terrorism in the late 1980's was a lot of work on the peace process. By the time we got the Madrid Peace Conference, that was a big plus, and it increased the incentive of the Arab governments to work with us against terrorism. At the same time in the Gulf we began to protect the Arab states there who were under threat from first Iran, then Iraq, rather than shipping arms to the Iranians, which also gave them incentive to work with us. So we have to take these sort of things into account as we go along, otherwise, we're not going to get the sort of cooperation that we want.

MARGARET WARNER: Ambassador Bremer, do you read it that way, that we have to be willing to address the grievances or the problems or issues of some of these governments if we want to get their cooperation in curtailing activities of terrorists, whether they're individuals or otherwise?

L. PAUL BREMER: Well, of course, there's obviously a place in the counter-terrorism strategy. It has to be the central place for a broad political and economic effort. And it's only when you run out of those kinds of mechanisms that you have to turn to covert action and military action. And it's of course helpful to address other people's concerns. But I would say in the case of people like bin Laden, there really is no-there's nothing we can do politically to satisfy him. There's no point in addressing the so-called root causes of bin Laden's despair with us. We are the root cause of his terrorism. He doesn't like America. He doesn't like our society. He doesn't like what we stand for. He doesn't like our values. And short of the United States going out of existence, there's no way to deal with the root cause of his terrorism. So we need to be clear on where we use the political and military and where we have to take covert action and use political or economic elsewhere.

MARGARET WARNER: Do you agree, that it with someone, Bill Maynes, like bin Laden there is no political solution?

CHARLES WILLIAM MAYNES: Well, in the narrow way that Paul described it, I do agree with that, but the issue here is trying to deny him allies. What we want to do is adopt the kind of strategy that the ambassador was mentioning to get the kind of result that we just had in Ireland, where the two people who are seen as leaders of the real IRA were shouted down by their villagers, could not reach their shop, could not open up because there was such outrage over what had happened with the recent bombing. I don't think that outrage would have taken place had the British not reached the agreement with the Irish on that fundamental agreement. And so they lost their allies. They lost the acquiescence of their community. And it's that kind of-we have to have a strategy that tries to deprive bin Laden of allies. Just today, the vice president of Chechnya denounced Americans and defended bin Laden and said that Muslims should attack Americans. We want to deny that kind of support.

MARGARET WARNER: Secretary Perry, that raises a question which is: How do we prevent this war that we're waging from being seen by the rest of the world as really a war against Muslims, some what 20 percent of the world's population?

WILLIAM PERRY: We have to be very clear and straightforward about our goals here. Our goals are to prevent the murder of innocent women and children. This is not, in our view, a religious war. It is people who are murdering civilians to achieve political objectives, and we should be very clear that that's how we see it and that's how we're functioning. We do not have-we have no problem-the Muslim religion-we have many hundreds of thousands of Muslims living happily in this country. So we need to be very clear on that point. But in the war that we're talking about to the extent the diplomatic actions that are described are not successful, we still need a multi-dimensional action program, which includes improved intelligence and includes improved passive defense, improving the structure of the embassy buildings and military bases. It includes preventive defense, trying to keep nerve gas and anthrax out of the hands of terrorists. It involves improved ways of what I would call consequence management, so that if something like nerve gas is used against us, which the policemen and fire department may not be able to cope with, that we have ways of moving very, very quickly to help the people who have been injured and attacked.

MARGARET WARNER: And what role-staying with you for a minute-do you see for the U.S. military in this? I mean, it's kind of-

WILLIAM PERRY: That is the last resort and when military action is used, it is used primarily, it seems to me, as a preemptive measure. The attack on the Khartoum plant was a preemptive attack because we wanted to destroy that plant before the nerve gas it was producing could be used against other innocent civilians. In addition to that, the military has probably the best expertise anywhere in the country in how to detect and deal with nerve gas or biological attacks. And, therefore, they need to assess law enforcement officials in that regard.

MARGARET WARNER: Would you agree, Amb. Oakley, that the military steps are really last resort, or to be used sparingly?

ROBERT OAKLEY: Well, as Bill Perry was pointing out, in some cases they can be preventive; they can help protect installations; they can help with intelligence; at the same time they can help strike, as they did against the camps in Afghanistan. You had the military-has a broad range of capabilities, which are really invaluable, and we have to use them all, together with the civilians, so it has to be a combined effort, I think.

MARGARET WARNER: Amb. Bremer, I'd like to go back to something you raised earlier about the use of covert operations. What are you talking about really?

L. PAUL BREMER: Well, it seems to me there's a whole broad range of things that we can do to play on the terrorist's natural paranoia. Every terrorist is afraid that he's going to be betrayed by even his closest associates. And there are all kinds of things one could do like putting out a notice that we'll pay a very high ransom for bin Laden, dead or alive. We could put out stories in the press that he's actually not a good Muslim, that he has-was guilty of a lot of very high living early on life. We could put out stories along the lines of something Mr. Maynes is mentioning, that we're in very serious conversations now with the Taliban Government of Afghanistan about turning him over to us. He may get nervous enough from a variety of these kinds of stories to leave Afghanistan, and when he hits the road, he is very vulnerable to being intercepted, arrested, and brought to justice. I think we've got to try to keep him off balance. That's our objective at the moment.

MARGARET WARNER: I noticed you didn't say assassinated. Would you say that the executive order that still exists against assassination by anyone who works for the U.S. Government applies not only to foreign leaders but to foreign individuals, in general?

L. PAUL BREMER: I have never quite understood the moral and ethical arguments for this assassination ban. After the Marine Corps barracks-the Marine bombing in Lebanon in 1983, the United States responded by putting a battleship offshore of Lebanon and lobbing Volkswagen-size shells into villages in the mountains in Lebanon as our retaliation, killing villagers who were not even from the same tribe of the people who had planted the bomb. I don't understand why that should be somehow a legitimate response to terrorism, whereas if we know somebody who's guilty-and we know bin Laden is guilty-he, himself, declared war on us-as Secretary Perry mentioned-I don't understand what the ethical argument is that we shouldn't be able to go kill him.

MARGARET WARNER: You want to take that up, Bill Maynes?

CHARLES WILLIAM MAYNES: It's mainly a prudential argument. The Israelis and the Palestinians have had a terrible struggle with one another over the years, and they finally reached an agreement privately that they would not go after one another's leaders. We have the experience with Cuba that is a very unfortunate one, and, in fact, just this week we've arrested a number of Cuban-Americans apparently who were plotting the assassination of Castro. We are such an open society that for us to follow such a policy would be very self-destructive.

MARGARET WARNER: All right. Well, gentlemen, thank you all four very much. We have to leave it there.% ? FOCUS - COUNTING HEADS

JIM LEHRER: Yesterday a federal court added the latest twist to the problem of counting Americans. Betty Ann Bowser reports.

BETTY ANN BOWSER: It was a hot summer morning at the community health clinic on Houston's teeming southwest side. Sixty-three thousand patients came here last year--most of them poor--with no medical insurance--many of them new immigrants.

JIM WATTERS: There are about sixty stars up there and people have come from all of these countries to this clinic, primarily from countries in Central America and Latin America, including Mexico, but also from Africa, Asia, Europe, and literally all over the world.

BETTY ANN BOWSER: People in these neighborhoods frequently don't speak English. Sometimes they are suspicious of anything to do with government. So it's not surprising that the U.S. Census has a history of being unable to count everybody in this part of town. Jim Watters runs the clinic..

JIM WATTERS: There is an element of fear based upon sometimes where they have come from and the conditions under which they've come here. And secondly there's an element of fear because of their status--of them being undocumented, they're fearful of what the government may do to them.

BETTY ANN BOWSER: What do you think that's going to do when they go to take the census?

JIM WATTERS: It's pretty apparent what it's going to do. People are not going to be tremendously cooperative. They're going to be invisible. They're going to not answer the questions correctly. If you've got ten or twelve or thirteen people living in an apartment, they're going to not let you know that there are that many people living there.

BETTY ANN BOWSER: Census information is used to determine how much federal money cities like Houston get. The city, in turn, uses that same data to decide where to put health clinics like this one. Census data is also used to determine how many seats an area gets in the House of Representatives. So when people aren't correctly counted, the results can have a number of implications. Uncounted Americans are a problem all over the country, but they're especially problematic in Houston with its massive urban sprawl and huge mobile immigrant population. The Census Bureau says it missed an estimated 66,000 people in 1990, almost 4 per cent of the city's population. People who are missed make up what's called the undercount. Stephen Klineberg is a sociologist who's been studying the demographics of Houston for 11 years.

STEPHEN KLINEBERG, Rice University: The Asian community's the most rapidly growing. Many are upper middle class doctors from India and computer engineers from China. Many others are refugees and the largest refugee resettlement program in American history that brought the Vietnamese boat people, the survivors of the killing fields of Cambodia, the Hmong tribesmen from northern Laos often with very few skills, with no command of English and coming at a very rapid rate.

BETTY ANN BOWSER: Many of those least likely to be found are people from Southeast Asia came to Houston because its hot humid climate reminded them of home. Thousands settled in low rise apartment complexes vacated by the white middle class after the oil bust of the 1980's. This one is called Thai Xuan Village, a condo project that's beginning to show its age. Almost no one here speaks English. So for the next two years Steven Hoang, a retired doctor from Vietnam, will visit places like Thai Xuan village in and around Houston to teach people about the census in hopes of increasing the turnout. Recently, he told residents of Thai Xuan how the census would work and promised them that their answers would stay confidential and not be shared with the Internal Revenue Service or the Immigration & Naturalization Service. He also explained that the census here is very different from the one taken in Communist Vietnam, where belongings were counted.

STEVEN HOANG, Census Bureau: They come from house to house and count everything, whatever more than supposed to own, the confiscate-

BETTY ANN BOWSER: They confiscated their personal belongs?

STEVEN HOANG: Yes, their belongings, and people scared to death when they heard about census.

BETTY ANN BOWSER: Once people heard Hoang's presentation they indicated they would be willing to participate in Census 2000. But it was a different story when Hoang visited Asian food stores and tried to talk to people at random. He got a series of refusals when he asked people to talk to the NewsHour about the census.

STEVEN HOANG: Asian people very private. They keep things for themselves. They don't want to share with anybody because they don't believe anybody can help them.

BETTY ANN BOWSER: The reluctance to participate in the census worries Mary Des Signes Kendrick. She's director of the Houston Health Department.

MARY DES VIGNES KENDRICK: If we really don't know where individuals are in our community, what the numbers are projecting and we're spending our money in this part of town because there are people are maybe telling us that they have a problem. And if we are not out there on a regular basis and seeing it with our own eyes, then we may, number one, be unaware that we have a problem in a certain area where we have high risk groups and we know that poverty, socioeconomic, other factors will make a difference.

BETTY ANN BOWSER: The problem became very real when the Health Department received anecdotal reports of tuberculosis in Houston. Harris County officials wanted to do a study on the problem but couldn't get the money because official 1990 Census figures showed the at-risk population wasn't big enough. The city health Department's chief planner, Peggy Rogers is frustrated when she has to depend on imperfect data to do the critical job of matching resources with needs.

PEGGY ROGERS: At one point we were tracking what started as a fairly minor measles outbreak. It did grow quite a bit larger simply because we didn't have a handle on where all of the children were at the time so that we could get mobile teams to go out there and immunize those kids very quickly.

BETTY ANN BOWSER: The undercount is nothing new. As far back as 1940 officials discovered that minorities were more likely to be missed by the census than whites. But it wasn't until 1990 that the census was less accurate than its predecessor in 1980. Minority groups bitterly complained that inaccurate numbers meant less political power and less federal money was going to their communities. So this time around the Clinton administration wants to use statistical sampling in addition to the traditional head count. The President recently visited Houston to promote a controversial plan that would combine sampling with the traditional method.

PRESIDENT CLINTON: Some of our most vulnerable population routinely are omitted when it comes time to providing federal funds for critical services. An inaccurate census distorts our understanding of the needs of our people and in many respects, therefore, it diminishes the quality of life, not only for them, but for all the rest of us as well.

BETTY ANN BOWSER: Des Vignes-Kendrick supports the President's plan.

MARY DES VIGNES-KENDRICK: If the bottom line is getting as accurate a count of what we have in the community, no matter what your political affiliation, the accurate number will let you know what you have within the community and then you could look at where you go from there.

BETTY ANN BOWSER: But a group of Republicans in the House of representatives didn't agree and sued the Commerce Department. Yesterday a three-judge federal court sided with those Republicans and ruled sampling was unconstitutional. The debate is also reflected in Houston, where Gary Polland, the chairman of the Harris county Republican party.

GARY POLLAND: I think whenever you have a political entity controlling a process that should be objective you have the opportunity for abuse. So when you sample, you use a formula. The formula you use depends on who makes it and whoever makes that formula can build in abuses or benefits for one side or the other. So as a Republican with the Democrats in charge I have real concerns about sampling because I think we're not going to be treated fairly.

BETTY ANN BOWSER: Republicans Robert Eckels, who is a Harris County commissioner, agrees that sampling invites misuse.

ROBERT ECKELS: When you start doing statistical sampling, you open yourself up for whether it was the Republicans or the Democrats, it's not a partisan issue to me, you open yourself up to manipulating the numbers. The proper way is to properly count very individual.

BETTY ANN BOWSER: The Clinton administration says it will take its case for sampling all the way to the U.S. Supreme Court, so it may be next spring before the Commerce Department knows how to proceed. That could leave the department with less than a year to plan a $4 billion operation that must hire nearly 300,000 people to count the American population in the year 2000.% ? FINALLY - IN MEMORIAM

JIM LEHRER: Finally tonight former Supreme Court Justice Lewis Powell, who died this morning in Richmond, Virginia, at the age of 90. He was 64 in 1971, when President Nixon nominated him for the court. He retired 15 years later, after playing a pivotal role in important decisions on capital punishment, abortion, and affirmative action, among others. In 1989, two years into his retirement, I interviewed him in his Supreme Court office, and I asked him what a justice did with his political and ideological beliefs when it came time to make a decision.

LEWIS POWELL, Supreme Court Justice (Retired) January 1989 : Well, I think every lawyer holds the Supreme Court in the highest respect and regard. When you take the oath of office to sit on this court, I think there's a very strong tendency of justices to try to put political inclinations behind them. We cannot always do it, of course, but basically when you put that black robe on and take the oath, I think your entire viewpoint begins to change.

JIM LEHRER: In what way? Explain that, how that changes.

LEWIS POWELL: I think you realize the responsibility that this court has and that the injection of politics in their decision would be disastrous. The people of the United States, with exception of a few periods in our history, have supported this court. I think they have done so basically because the court has remained out of politics and also because people understand that the United States Supreme Court has a responsibility for and I think does protect the liberties of the people.

JIM LEHRER: One of the major decisions you wrote while you were on the court was the Baake case, an affirmative action case. Explain why affirmative action is necessary in terms of protecting minority rights, at least from your perspective.

LEWIS POWELL: I held-I wrote-the court finally held, of course, that in view of the situation in our country, there was an important interest, indeed, a compelling interest in the university, which was before us, to have diversity in the student body. If you had an all white or an all black or even an all male or an all female university, that is, a university that wouldn't admit anybody, except those categories, a great deal would be lost in education in the United States. So in the end, we concluded that affirmative action programs that did not involve fixed quotas that, in effect, involved goals, had-were entitled to be upheld.

JIM LEHRER: Now the views of two constitutional law professors: Kathleen Sullivan of Stanford University and Douglas Kmiec of Pepperdine University. Doug Kmiec, how should Lewis Powell be remembered?

DOUGLAS KMIEC, Pepperdine University Law School: Well, I think Lewis Powell has to be remembered as a very kind, very gentle soul, somebody who was very approachable and very friendly, but Lewis Powell was also a pragmatic centrist, someone who was quite willing to balance constitutional values, and perhaps the hallmark of Lewis Powell's career is that he always tried to give something for everybody in his constitutional decision-making. The case you asked him about, Jim, the Baake case, is a perfect example of that. He held both that race was a suspect classification and, hence, required a compelling state interest, but in the same breath he tried to articulate that race could be used on some occasions if, in fact, it promoted educational diversity.

JIM LEHRER: Kathleen Sullivan, what would you add or subtract to that-from that?

KATHLEEN SULLIVAN, Stanford University Law School: Well, I think Doug Kmiec is exactly right that he sat at the very center of the court. And in some ways that made him one of the most powerful men in America in the late 70's and the 80's. He sat astride the ideological fault lines of the court, and so he could say race preferences were okay if you use them discreetly and a little bit but not if you use them too openly and too far. He was a gentile, courtly southern aristocrat, who reflected, in a sense, the kind of politics of moderate Republicanism. He could side with the privacy interest backed by Planned Parenthood, a right to privacy for contraception and for abortion, which he always supported, but not a right to privacy when it came to gay rights. Perhaps one of the most important votes he cast was one in which he came out in the majority against a right of privacy for private, consensual sex between two men in the privacy of their own bedroom. That was the Bauers Vs. Hardwick decision in 1987. So he was for privacy when it came to abortion and contraception, not when it came to gay rights. He was a moderate egalitarian. He was willing to support the rights of women to get equal pay, but he wouldn't have integrated every institution of our society by gender, didn't think men had to be admitted to all-women nursing schools, and I dare say he probably wouldn't have thought women had to be admitted to the Virginia Military Institute, as the court decided a few terms ago. He supported the rights of very appealing cases, like the rights of illegitimate children to inherit from their parents, the rights of a grandmother to live with her grandchildren who were cousins, rather than siblings, in her own home. But when it came to poor people or some of the other downtrodden in society, he wasn't quite such an egalitarian. He voted that in an important decision called Rodriguez that cities-poor children in inner cities didn't have to get money from rich suburbs to go to school. Of course-

JIM LEHRER: Yes. Doug Kmiec.

DOUGLAS KMIEC: One of the things that's true there is that when you have a justice like Justice Powell, who is balancing multiple factors, when he came to a decision like Rodriguez, like Kathleen talks about, he was very concerned about intrusion into local government decision-making. One of the things that was a characteristic about Lewis Powell-in fact, one of the things that endeared him to Richard Nixon-was that he was a strong supporter of federalism and state's rights. This came from Lewis Powell's own association as president of the Richmond School Board, which he viewed as the very embodiment of democracy. And so one of the things for Powell was that he was to some degree very unpredictable and, therefore, for people who have strong views one way or the other, very unsatisfying, but one view that he held true to was that he wanted to preserve local government institutions. And I think that pretty much explains the Rodriguez decision not to have the federal government become the provider of uniform standards in education policy.

JIM LEHRER: Well, Doug Kmiec, on this question I asked him in 1989 about ideology and that sort of thing, he was considered a conservative, was he not, when Richard Nixon appointed him in 1971?

DOUGLAS KMIEC: Well, he was considered a conservative, but, Jim, you have to remember what kind of conservative Richard Nixon was. Richard Nixon was a pragmatic conservative himself. He often strayed from what would be perceived today as conservative values. And, in fact, the strongest criticism of Lewis Powell comes from the fact that instead of bringing a kind of principled texturalism to the Constitution, which I think today's court, Justice Scalia and Justice Rehnquist would bring to the court. Justice Powell brought-tried to set politics aside but he tried to set politics aside by identifying a relevant set of values in each case. He was almost as if he was a trial lawyer coming to the record of the case, looking to decide it on particular facts.

JIM LEHRER: And not bring his own ideology, or his own views to the table.

DOUGLAS KMIEC: Not bring his own ideology or views to the table, but, of course, we all have to question how much we can screen our own views or ideology, and that's where some of the criticism of Justice Powell comes in.

JIM LEHRER: Now, Kathleen Sullivan, from the liberal point of view, he was seen as he went in as a conservative. How was he seen as he went out?

KATHLEEN SULLIVAN: Well, when he went out, liberals were very happy to have had him there for a long period in the 70's and 80's, because he provided the crucial fifth vote to continue to uphold affirmative action, to uphold abortion, to keep prayer out of schools at a time when it looks like President Reagan was quickly going to get a votes to overturn Roe Vs. Wade and get rid of affirmative action. So when he went out, he was thought of as a person who provided the kind of holding action for liberal causes for quite some time, even though at bottom, as we've both agreed, he really was a rather socially conservative justice.

JIM LEHRER: Do you agree with Doug Kmiec's point, though, that when he sat down to see-to rule on a particular case that he kind of tried to get his own views out of it before he made a decision?

KATHLEEN SULLIVAN: I do think he tried to approach every case one case at a time and as fairly as possible. And I think your interview captured that perfectly. But when you do try to balance both sides the way he did, you wind up with a place that is a kind of political place. It's political centerism, or moderation. And that's really how he can best be remembered, as a person who's kept true to the center, avoided extreme ideologies, but wound up keeping the court on a politically moderate course.

DOUGLAS KMIEC: He's also a justice, Jim, that sort of disproves the modern maxim that presidents are often dissatisfied with their judicial appointments. Richard Nixon was so satisfied with Lewis Powell, so satisfied that he had mirrored the same values that Richard Nixon had brought to public life, that when Lewis Powell retired, he reminded Justice Powell that as he said when he nominated him, 10 years of Lewis Powell is worth 20 years of anyone else.

KATHLEEN SULLIVAN: Everyone loved him. He was beloved by the other justices. He was thought of as a kind of judge's justice, and everybody thought he was kind and fair.

JIM LEHRER: Is that why they liked him so much, because he was kind and fair?

KATHLEEN SULLIVAN: Well, I think because he seemed to truly try to be judicious, to take the road seriously, to try to consider cases fairly. There was perhaps only one issue on which he was deeply ideological in a right-wing way. He believed, as Doug Kmiec suggested earlier, in state's rights, the prerogatives of state and local governments, which are closer to the people to decide how schools should be run and what police and firemen should be paid. And he didn't think the federal government should intrude too far there. That was perhaps the only piece of Powell that would have been dear to President Reagan, as well as President Nixon.

JIM LEHRER: Doug Kmiec, in all the statements that people made about him today, I was touched by or struck by the fact that people said he was a quiet man, a modest man, and then people would add, unlike some of the members of the current U.S. Supreme Court. Would you agree with that?

DOUGLAS KMIEC: Well, I don't want to compare the current members of the Supreme Court, but I will-I do agree with the assessment that he was a modest and a humble man. In fact, the reason he brought that humility to the court was because while he was a national legal figure, he had been president of the American Bar Association, he had not been schooled in constitutional law in a comprehensive way. He didn't sit in on Kathleen Sullivan's class, for example.

JIM LEHRER: And he hadn't been a judge before. Yes. It was his first judicial appointment, was it not?

DOUGLAS KMIEC: As a result, he worked very hard. People reported time and again that he was working six, seven days a week bringing the records home in cases. His eyes were so tired at one point that he couldn't read any longer himself, but he asked his late wife to read to him so that he could understand the case.

JIM LEHRER: A quiet, gentle man, Kathleen Sullivan.

KATHLEEN SULLIVAN: Absolutely. He was a quiet, gentle man. When he spoke on the Supreme Court bench, everybody listened. A hush came over the courtroom because it was so rare and so special. But, you know, he was willing to admit his mistakes, and perhaps his most famous admission of a mistake was that he said some years after that decision about homosexual sodomy, he said, I think I made a mistake in that one, if the bedroom is private and if abortion is a private matter, perhaps sex should have been a private matter too. So sometimes when you're close to the middle and you try to weigh things at the center, you sometimes may admit you called it wrong. And he had the courage to say so.

JIM LEHRER: Okay. Thank you both very much.

DOUGLAS KMIEC: You're welcome.

KATHLEEN SULLIVAN: Thank you.% ? RECAP

JIM LEHRER: Again, the major stories-the other major stories of this Tuesday, Hurricane Bonnie was projected to hit North Carolina tomorrow morning. South Texas got more rain and flooding. The South African franchise of the American restaurant Planet Hollywood was bombed in Cape Town. There was one death and twenty-four injuries, and seven Cuban-Americans were indicted on U.S. charges of plotting to kill Fidel Castro. An editor's note before we go tonight: One of David Gergen's guests last night said the atomic bomb was first exploded on the Bikini Atoll. Wrong-the Atoll was used as a nuclear testing site, but only after World War II and several earlier atomic explosions. We'll see you on-line and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.