The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, the news of the day; then the legal argument over what Congress did in the Terri Schiavo case; a Jan Crawford Greenburg rundown on today's domestic violence case before the U.S. Supreme Court; a look at how Secretary-General Annan would change the United Nations; and a musical memory of singer Bobby Short, who died today.

NEWS SUMMARY

JIM LEHRER: The parents of Terri Schiavo appealed to a federal judge today to reinsert her feeding tube. After two hours, the judge said he would not rule just yet. A court in Florida had the feeding tube removed from the brain-damaged woman last Friday, at her husband's request. But overnight, Congress voted to involve the federal courts. Lawyers for both sides spoke after today's hearing.

GEORGE FELOS, Lawyer for Michael Schiavo: This law is blatantly unconstitutional because Congress cannot pass a law that substantially obstructs a fundamental right. Each American under the United States Constitution has a fundamental right to say no, I don't want that medical treatment. I don't want that respirator. I don't want that feeding tube.

DAVID GIBBS, Lawyer for Terry Schiavo's Parents: The fundamental liberty that has always been protected in America is not the right to kill people. The fundamental liberty is the right to life. We are very careful a capital case when someone has committed a crime against society worthy of the death penalty to make sure every action is taken to make sure that their life is protected, their due process rights are protected. Now Terri Schiavo, an innocent disabled woman, faces death and we don't believe her rights have been adequately protected under the Constitution.

JIM LEHRER: We'll have more on the story right after this News Summary. The U.S. Supreme Court today rejected an appeal by 9/11 suspect Zacarias Moussaoui. He wanted to put questions directly to three key al-Qaida prisoners. He claimed they could exonerate him of any role in the 9/11 plot. The Justice Department argued granting that request would compromise national security. Chief Justice Rehnquist returned to the bench today for the first time in five months. He was diagnosed with thyroid cancer in October. He left home this morning without speaking to reporters. But later, he did ask several questions during two hours of arguments at the court. One case involved the role of police in preventing domestic violence. We'll have more on that case, and the chief justice, later in the program. Secretary-General Annan called today for sweeping changes in the United Nations. He proposed more new members for the Security Council and a new body to replace the much- criticized human rights commission. He also said the U.N. must spell out conditions for the use of force, and he called for global agreement on defining terrorism. Later, Annan said he'd had "constructive" discussions with U.S. officials about the needed changes.

KOFI ANNAN: I think there are many things in the report that should please many states including the United States. You have to understand that we have 191 member-states and are dealing with problems of far regions, problems that affect all member states. I did not tailor the report to fit a region or a country or a group of countries.

JIM LEHRER: Annan said U.N. members must work more closely to keep nations like Haiti and Sierra Leone from sliding back into chaos. World leaders will meet in September to discuss the report. We'll have more on this story later in the program. Two U.N. peacekeepers were killed in Haiti over the weekend. They fought remnants of Haiti's disbanded army in two separate towns. The U.N. troops were from Sri Lanka and Nepal. They were the first major clashes between the U.N. force and former Haitian soldiers. The peacekeepers deployed last year after Haitian President Aristide was ousted. Attacks across Iraq killed at least ten people today. The worst was a roadside bombing southeast of Baghdad. Seven civilians were killed there, all of them women and children. Last night, U.S. forces killed 26 insurgents after they ambushed a U.S. patrol south of Baghdad. Six Americans were wounded. The U.S. Military also announced the death of another U.S. Marine yesterday. The U.S. Army has raised the maximum age for recruits to the National Guard and Reserves to 39. Officials said today it's a three-year experiment. The Army Guard and Reserves have missed recruiting goals lately. They blamed the war on Iraq. Nearly half of the troops serving there are reservists. North Korea announced today it has expanded its nuclear arsenal. It said the move was to ward off a U.S. attack. Earlier, Secretary of State Rice again warned North Korea to give up its nuclear program. During a visit to Beijing, China, she hinted the U.S. might seek international sanctions.

CONDOLEEZZA RICE: The North has not yet demonstrated a willingness or a determination to make the non-nuclear Korean Peninsula a reality so it is incumbent on everyone to make very clear that this really is the only way that the North is going to achievable its aims. If we cannot find a way to resolve the North Korean issue in this way, then we will have to find other means to do it.

JIM LEHRER: Rice also said the balance of power in Asia would be disrupted if the European Union lifts an arms embargo on China. Time-Warner agreed today to pay $300 million to settle civil fraud charges. The Securities & Exchange Commission charged the America OnLine division lied about advertising revenues and subscriber numbers. Last December, Time-Warner paid $210 million to settle a separate criminal case. Oil prices eased a bit today, but gasoline prices kept rising. The U.S. Energy Department reported the price was up another five cents last week, to nearly $2.11 a gallon. The record was set 24 years ago, when gas topped $3 a gallon, adjusted for inflation. On Wall Street today, the Dow Jones Industrial Average lost 64 points to close at 10,565. The NASDAQ fell a fraction of a point to close at 2007. In passings of note, auto designer John Delorean died Saturday in Summit, New Jersey, of complications from a stroke. In 1981 he introduced his famous gull-winged car named for himself. Later, he was acquitted of plotting to sell cocaine to salvage his company. John Delorean was 80 years old. Today singer Bobby Short died of leukemia at a New York City hospital. He appeared at the Carlyle Hotel in New York for more than 35 years. He also entertained four different presidents. Bobby Short was 80 years old. We'll hear some of his music at the end of the program. Between now and then, the Schiavo legal debate, a domestic violence argument, and U.N. reform.

UPDATE - LIFE SUPPORT

JIM LEHRER: The Schiavo case moves to federal court. Kwame Holman begins our coverage.

KWAME HOLMAN: It's unclear how much of a victory it was, but an early morning act of Congress today gave new hope to those advocating to keep brain-damaged Terri Schiavo alive. Until today, the battle over the feeding tube that has kept her alive for the last 15 years had remained primarily a state matter with a U.S. District Court and the U.S. Supreme Court each refusing to intervene. It began with a ruling five years ago by Florida Judge George Greer that the feeding tube could be removed. Ever since, the case has gone back and forth among Greer's Pinellas County Circuit Court, Florida's higher Second District Court of Appeals, and the Florida Supreme Court-- more than 20 rulings in all. Several times, lawyers for Terri Schiavo's parents succeeded in getting the higher courts to block temporarily removal of their daughter's feeding tube. But each time, the courts ultimately upheld Judge Greer, and the wishes of Terri Schiavo's husband, Michael, to remove the tube. The last time came last Wednesday. That's when the United States Congress got involved, and the result was new legislation, signed by President Bush early this morning, allowing a federal court to get involved.

PRESIDENT GEORGE W. BUSH: This is a complex case with serious issues, but in extraordinary circumstances like this, it is wise to always err on the side of life.

KWAME HOLMAN: Senate Bill 686 says the "U.S. District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Mrs. Schiavo for the alleged violation of any of her rights under the Constitution or federal laws." During a three-hour debate last night, that's all that some House Republicans said they could hope for. Tennessee's Zach Wamp:

REP. ZACH WAMP: Now, I am concerned about the separation of powers and the tenth amendment, and I have a record for a decade of standing on almost a libertarian platform on some of these issues. But I do not think we are going too far here. This is a review. It is simply a review. It is a reasonable step.

KWAME HOLMAN: But Michigan Democrat Sander Levin argued the Terri Schaivo case already had been settled in state court.

REP. SANDER LEVIN: That court has already addressed that issue. It did so just a few days ago. Here's what it decided, and I quote, the court finds there is not a substantial likelihood the petitioners will prevail on their federal constitutional claim. So essentially what you are doing now for one case is changing the federal rules for one case, and saying there shall be a de novo hearing, disregarding everything that's happened through the state courts and federal courts until now.

KWAME HOLMAN: "De novo" means the court has to consider the case anew, as if all the evidence were fresh. Maryland Democrat Steny Hoyer said that was unnecessary.

REP. STENY HOYER: In quoting Judge Altobrand of the Supreme Court of Florida, "Not only has Mrs. Schiavo's case been given due process, but few if any similar cases have ever been afforded this heightened level of process."

KWAME HOLMAN: But the counter- argument offered by Majority Leader Tom DeLay was not a legal one.

REP. TOM DeLAY: Mr. Speaker, I appreciate the gentleman from Maryland's words, but I look at it a little differently. After reading all the records and everything, what I do know is that there is a mother, a father, a brother, and a sister that want Terri Schiavo to live, and they want to take care of her.

KWAME HOLMAN: Following the action in Congress, U.S. District Judge James Whittemore held a two-hour hearing this afternoon in Tampa, but gave no indication when he might issue a ruling.

JIM LEHRER: Now, the legal debate over the role of Congress and the courts in the Schiavo case. Jay Sekulow is the chief counsel for the American Center for Law and Justice, which supports restoring Schiavo's feeding tube. His group filed an amicus brief today in the U.S. District Curt in Tampa, which is hearing the case. And Laurence Tribe, he is a professor of constitutional law at Harvard Law School.

Professor Tribe, first of all, were Congress and the president within their rights to make this a federal case today?

LAURENCE TRIBE: I don't think so, Jim. I think that Congress would have the power to pass a general law after studying, as it says it intends to, the situation around the country to see of the thousands of tragic cases like this in which families are torn asunder about what should happen, which of those cases should go to federal court? When is it enough for the state courts to rule? But to pluck this one case out of the universe and to say of this case, as the president did, it's a complex case. Sure, it is. There are thousands of them. But what is it about this case that makes it fair to the parties involved - and one can never tell which of them is more hurt or which of them is more helped -- to create an entirely unique legal regime for them -- the same substantive law supposedly but unlike everybody else in the history of the country and apparently everybody in the future because the law says it shall not serve as a precedent; they get to turn back the clock, go to an earlier time and hold completely new evidentiary hearings as though these years of litigation hadn't occurred. Doing this special thing is arbitrary power, not really law and it violates the due process clause as well as the separation of powers.

JIM LEHRER: Mr. Sekulow, you take a different view of this.

JAY SEKULOW: I sure do. And, Jim, let me just say first of all there's an interest here that people tend to ignore and Professor Tribe kind of glanced over it also. And that is the interest of Terri Schiavo. You know, when you're on death row and subject to capital punishment which is of course the taking of your life, you could exhaust all the systems within the state court systems and then you still are entitled to what's called de novo or complete review by the federal system. That's what the Congress did here. They passed a bill for Terri Schiavo, yes. They could not get agreement on a general piece of legislation but Congress has the authority to set jurisdictions under Article 3. They can do that. I believe that they have the right to do that. I think the courts are probably going to come out with this issue. I think the issue that is going to come up here is not going to just be whether Congress had the authority-- I think they clearly did-- but whether the parents can meet the threshold of saying that they should be able to get the injunction, that is the tube reinstated because of irreparable injury. And clearly, you know, the Supreme Court opinion a number of years ago, in the dissent of the Frizane case, a similar type of situation, the court said that, you know, injunctions can be reversed but court orders cannot resurrect people from the dead. And every hour that's ticking by and every moment that ticks by in this case is closer and closer to Terri's demise. And I think the... what the judge needs to do here is rule, rule quickly, rule promptly, so that we can then get the case up to the U.S. Court of appeals for the 11th Circuit. We represent Congressman Weldon in the case. He drafted the legislation so obviously our view is this is constitutional.

JIM LEHRER: But to follow-up, to Professor Tribe's point, Mr. Sekulow, why this case, why this individual case, why not the thousands before and the thousands that will come after?

JAY SEKULOW: You know, there hasn't been thousands before and thousands ... because generally there's family agreement. There's been a different kind of process involved. There may be a living will. None of that is here. And I think what the president said this morning when he signed the bill and the statement that he released said in these kinds of cases difficult cases you have to be cautious and you have to side on life. So this is one of those unique exceptions to general rules where it's literally a life-and-death decision hanging in the balance here. And you make the cautious decision and you side with life. Let the federal courts take a look at this. It's not mandating a decision. That's where Professor Tribe is wrong. This isn't Congress coming and saying you must hold this. It simply is a granting of jurisdiction. Congress has that authority.

JIM LEHRER: What about that, Professor Tribe? The Congress didn't tell the judge what to rule, only to review the case.

LAURENCE TRIBE: Yes, Congress only said that in this one case-- and it is one case out of many where families are in disagreement and where there are tragic circumstances-- I know of hundreds in my study of the situation-- that in this one case, there shall be a completely new review. Now in the law of habeas corpus that Jay Sekulow talks about of people on Death Row, it is not true and it is certainly not true, it wasn't even true in the heyday of the Warren era that you don't defer to the state courts and you automatically get a fresh and new look. There are some circumstances where you do but that's pursuant to a general law that applies to everyone. Way back in 1884 the U.S. Supreme Court said that law has to be a general rule that particular decrees that give a different legal regime for someone, whether they come from a personal monarch or an impersonal multitude is just will dressed up as law. And of course the interests of Terri Schiavo are crucial here, but those interests exist on both sides. The thumb was put on the scale on the side of life in the Florida procedures. That's why they required clear and convincing evidence that she would have wanted to be allowed to die and not have further surgical intrusion. What Mr. Sekulow apparently wants is for this one case to be one in which even though the thumb was put on the side of life that she be put through the surgical procedure which can't be undone -- you can pull the tube out but surgery is surgery -- to be put through the surgical procedure. And, yes, in balance, death is more final than surgery. But the judge has said quite rightly in the hearing that he cannot grant an injunction and effectively decide that her right not to be further tormented as an object example, that that right doesn't count unless he decides that probably they will prevail on the merits, the Schindlers, her parents. And that will depend on whether Congress really does have the power for the first time in American history not simply to grant little favors to companies but to set up a whole new legal regime invading and intruding the decision-making of one family and one state proceeding.

JIM LEHRER: And you, Mr. Sekulow, you believe that the Congress does have the right to do this.

JAY SEKULOW: I clearly think so and --

JIM LEHRER: Have they ever done it before?

JAY SEKULOW: They have done it; not in the context of a life-and-death decision like this, but they have had special legislation. You heard about them; Professor Tribe just talked about them in the context of there's been legislation passed on economic issues that affect one company or a series of companies within a sphere. Here what happened was - I mean to penalize Terri Schiavo because Congress could not come to a more substantial or more aggressive approach to this is really the tragedy here. It's Terri Schiavo's life that is subject to death by starvation, something that you cannot do to someone by the way on Death Row. In fact, in Florida you couldn't do that to an animal.

JIM LEHRER: Mr. Sekulow, let me ask you this: What do you think now that the federal court system can do in reviewing this case that the state courts over seven years have not already done in Florida?

JAY SEKULOW: Well I think it's exactly the reason why you get federal reviews. You can sometimes exercise state claims and still have subject to review not only in capital cases but in civil rights cases. You know, the state courts weren't very perceptive to the needs of black citizens in this country in the 1950s and '60s so the federal government stepped in and ultimately when the Supreme Court ruled had to pass a Civil Rights Act. Why do you think the disability groups around the America from a broad cross spectrum really of ideological positions are backing Terri Schiavo here -- her family's position of at least maintaining the status quo while this is all looked at? And that's because there's really a denial of civil rights here. It's the ultimate civil right, the right to life.

JIM LEHRER: Professor Tribe, let me ask you, what's the harm? What's the harm to come from letting the federal court system look at this case?

LAURENCE TRIBE: The harm is a harm to all of us and a threat to all of us. I understand the human pull of seeing Terri Schiavo look like she's reacting to people on television. I understand and I have often argued for the cause of the disabled. But people on either side of this issue who are saying this is about life or it's about the poor incapacitated woman -- forget that the extraordinary power of Congress to reach its kind of bony arm and grab one family and say, you know, without any finding that there has not been a fair determination of rights, we're just going to put you on a federal platform and make a kind of show trial out of you. It may be emotionally satisfying to think that we're doing a favor to this young woman who, if the Florida courts were right, would desperately want to be allowed now to die. But even if you think you're doing her a favor, this is a power, this is a knife that cuts both ways; the knife of arbitrary power that cuts through the rule of law and says, hey, this is an interesting case. We'll pluck it out and set up a completely different regime for it. That is a power that no democracy can tolerate.

JIM LEHRER: Mr. Sekulow.

JAY SEKULOW: Emergency circumstances dictate important results - and this isn't -- we're not talking about some economic regulation case here. We're talking about literally, you know, the moments that we're sitting here talking with you, Jim, she's being starved to death. No matter what you say and Professor Tribe I think would be the first to admit....

LAURENCE TRIBE: What about the other people?

JIM LEHRER: Hold on, Professor.

JAY SEKULOW: Professor Tribe I think would be the first to acknowledge and he has protected the rights of the disabled; this woman is disabled too -- significantly disabled. And I don't think she should have her rights destroyed or trampled on without federal review -- I wish it was a broader statute. I think in the perfect world you would have liked to have seen it broader. The House version -- there were members of the Senate that said that. But that's not what they agreed on. The question then becomes: is this constitutional? I think it is. And, again it's not dictating a result. It's simply allowing federal oversight. When you're talking about life and death, allow a federal court to take another look.

JIM LEHRER: All right. We have to move on here, but I want to make sure and see if I can get the two of you to agree on the process at least from this point on. This district judge who has taken this under advisement, he said no decision today; he's going to come up with one. Assume any decision that he makes on either side is going to be appealed. Now that would go to what? The 11th Circuit ---

JAY SEKULOW: The 11th Circuit Court of Appeals -- both sides are ready to file those briefs. We're ready to file that.

LAURENCE TRIBE: But it could leap frog.

JAY SEKULOW: And then it could go to the circuit justice. Justice Kennedy. It's going to have to move very quickly.

JIM LEHRER: Circuit Justice meaning a member of the U.S. Supreme Court who hears cases quickly for the 11th Circuit, right?

JAY SEKULOW: It would be Justice Kennedy, correct.

JIM LEHRER: Then, Laurence Tribe, it then goes, whatever he rules, one side is not going to like that, so then it goes to the full court, is that right?

LAURENCE TRIBE: It's a little simpler really. His role may be to grant some emergency temporary relief but in this case there's also a procedure called certiorari before judgment in which rather than waiting for the circuit court to rule at all one simply files a petition in the United States Supreme Court and said, as Mr. Sekulow has said, this is very urgent; we have to have it decided and the U.S. Supreme Court could decide. But you know federal courts have already several times looked at this and rebuffed the argument that there's anything fundamentally wrong. The Supreme Court has denied certiorari three times.

JAY SEKULOW: That was primarily on federal standing issues, whether the parents had a claim; now they have a cause of action.

JAY SEKULOW: It's more complicated than that.

JIM LEHRER: It's possible that let's say this judge rules in the next 24 hours that the whole circuit court process could be circumvented, could hop right to the Supreme Court.

JAY SEKULOW: That's right. Professor Tribe handled one of the fastest cases in Supreme Court history and did a good job for his client, Vice President Gore - and that case went, I think, Professor Tribe, in four days from beginning to end. This case doesn't have four days. That's the problem. In my view, the parents' lawyer should be filing and it probably will be shortly if you don't get a decision in the next hour or two maybe three, you've got to be requesting a quick response and get right to the 11th Circuit and maybe do what Professor Tribe said take it right up to the Supreme Court.

JIM LEHRER: Would you agree, Professor Tribe, even though you come down on the wrong side that if the --

LAURENCE TRIBE: On the wrong side? I don't that it's the wrong side --

JIM LEHRER: I mean... I don't mean the wrong side.

LAURENCE TRIBE: I understand.

JIM LEHRER: I mean the other side. If you come down on the other side of this decision, if it goes for... never mind. Anyhow - however this thing turns out -

LAURENCE TRIBE: It should be fast. I agree it should be done quickly.

JIM LEHRER: Should it be done fast that's what I'm saying.

LAURENCE TRIBE: I think it should be done fast. I do not agree that what should be done in the meantime is to force this woman to undergo surgery just to enable this thing to be slowed down because that involved a serious harm.

JAY SEKULOW: Professor Tribe.

JIM LEHRER: Hold on, Mr. Sekulow. Let him finish.

LAURENCE TRIBE: It's important to recognize that if the probability is that when the court finally decides the case it will decide that there is no constitutional power in Congress to create a totally special law for one family, this is not just helping a company, if it decides that, then having forced her to undergo surgery will have been a big mistake so the basic question should be quickly did Congress violate the Constitution? That's what is being briefed tonight.

JIM LEHRER: Would you agree?

JAY SEKULOW: She's fed by a tube through a port. That port hopefully is in place. If not, it's easily inserted. And if Professor Tribe's theory is correct that she doesn't have much cognitive ability, then I still say putting her through surgery is certainly better than being starved to death.

JIM LEHRER: All right. Gentlemen, thank you both very much.

LAURENCE TRIBE: Thank you, Jim.

JIM LEHRER: Still to come on the NewsHour tonight, domestic violence at the Supreme Court, reforming the United Nations, and a song from Bobby Short.

FOCUS - SUPREME COURT WATCH

JIM LEHRER: Gwen Ifill has our Supreme Court story.

GWEN IFILL: Today the high court heard arguments in an unusually dramatic case of a mother whose ex-husband violated a restraining order to abduct, and then murder, their three little girls. The question: Did the police do their job? Also, back on the bench today, ailing Chief Justice William Rehnquist. At the Court watching all this for us today, as always, was NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. So, Jan, tell us the story of Jessica Gonzalez.

JAN CRAWFORD GREENBURG: Well, in 1999 Jessica Gonzalez got a restraining order against her husband that limited his contact with her and their three daughters, aged ten, nine and seven. It set out only certain times that he could see the family and it directed police to arrest him if he violated the terms of that order. About a month after that, Simon Gonzalez abducted the three girls when they were playing in their front yard. It was about 5:00-5:30 in the afternoon. At a bout 7:30 that night Mrs. Gonzalez made the first of many phone calls to the Castle Rock Police Department asking the police to enforce the order to arrest Mr. Gonzalez and to return her daughters back to her. And at every moment, every time out of five calls the police either told her to wait, call back later or there was nothing she could do. Finally, at about 1:00 in the morning, she drove down to the Castle Rock Police Department, filled out, you know, asked an officer to fill out an arrest report. The officer took the report but still did nothing to enforce the order and instead according to the Appeals Court decision went to dinner. That night a couple hours later, 3:20 in the morning, Simon Gonzalez drove up to the Castle Rock Police Department and opened fire with a semi-automatic handgun. The police fired back, killing him. And then they discovered the three daughters in the cab of his truck. They had been murdered by Mr. Gonzalez earlier in the evening.

GWEN IFILL: Well, this is clearly an awful situation. How did the police defend their actions or inaction?

JAN CRAWFORD GREENBURG: Well, you know, on the bench today in fact it was Justice Ginsburg who made that point that this was a restraining order that gave Mr. Gonzalez some contact with his daughters. He could see them at a weekly midweek dinner on occasion, on weekends on occasion. So perhaps the police saw nothing urgent here. They saw this order. It did give him some contact so there was not this sense of urgency but Jessica Gonzalez -- and the Justices today from their questions obviously had tremendous sympathy for her case. It's just horrendous -- the facts. They're devastating. She argues that there's no excuse, that police have no response.

GWEN IFILL: Her case, the complaint that she brought was that there was a violation of her due process rights, that there was a constitutional-- by their failure to enforce this restraining order that property was taken from her and that property were those rights.

JAN CRAWFORD GREENBURG: That's exactly right. This is a very novel constitutional claim. The appeals court agreed with her, making it the first appeals court in the country to find this kind of constitutional right. Now, as you know, the due process clause says that the government may not deprive a person of life, liberty or property without due process of law. It's designed to prevent arbitrary government action or to ensure fair procedures. So she contends that the restraining order created a property right. She had a right to enforcement of that order, and that the police officers' failure to enforce the order was arbitrary. It was so arbitrary that it was procedurally unfair and violated the Constitution's 14th Amendment.

GWEN IFILL: So today in the court what was the counterargument to her claim?

JAN CRAWFORD GREENBURG: A lawyer for the town of Castle Rock said, you know, yes, we agree, this case is horrendous. A father murdered his three children, but the police response did not cause or give rise to a constitutional violation. He said that there's not even a property right created here, much less a violation -- that a restraining order does not amount to any kind of property interest under the Constitution.

GWEN IFILL: Now, is the Bush administration... are they involved in this? Are they defending which side?

JAN CRAWFORD GREENBURG: They sided with the town of Castle Rock and argued -- a lawyer for the Bush administration today, John Elwood, argued that there was no property interest in enforcement of this restraining order so therefore the 14th Amendment due process clause doesn't come into play. And all the lawyers today and even the Justices acknowledged the horrendous facts and the terrible nature of this case, but the Bush administration and the lawyer for the town of Castle Rock and even the Justices suggested that a ruling for Mrs. Gonzalez could have tremendous practical consequences and severe economic implications because if the town of Castle Rock loses in this case-- and there is, let's say a property interest in having police enforce this order-- then what would happen when the ambulance driver showed up late in response to a call or the firefighters failed to put out a blaze? Those were questions that Justice Breyer and Justice Souter, the more liberal Justices seemed very troubled by.

GWEN IFILL: Sitting on the bench today with these Justices you just mentioned is someone we haven't seen in a while and that's Chief Justice Rehnquist. Did he take parts in the arguments actively?

JAN CRAWFORD GREENBURG: He was extremely active from the bench. He asked more than half a dozen questions, lengthy questions. He was very much in command. He kicked things off this morning as he always did: Swore in the lawyers; introduced the case. He was just like the old Chief Justice. In fact, the only way that you could tell that he's been ill, suffering from thyroid cancer, is his voice. His strong baritone voice the one that the people who know the chief so well will even speak in, it's almost like I want to say Jimmy Stewart voice but many octaves lower, that's different. I mean he had had a tracheotomy. His voice now is much higher. But if you put your hands over your ears it was the same old chief.

GWEN IFILL: The same energy.

JAN CRAWFORD GREENBURG: The same energy; he was very active.

GWEN IFILL: Physically what did he look like?

JAN CRAWFORD GREENBURG: He looked the same.

GWEN IFILL: Because he looked so frail on Inauguration Day.

JAN CRAWFORD GREENBURG: No, he looked much better, and people who have been close to the chief say he's gotten stronger. He's, you know, going through his treatment very well. And certainly today he was just as active in questioning and even in the second argument in a different case he asked the first two questions right away, lengthy questions, showing that while his voice may sound a little different, you know, his questions are still just as precise.

GWEN IFILL: Is this expected as a result around the court; are they saying, well, he's back for good or was this just an experiment to see if he could stand it?

JAN CRAWFORD GREENBURG: He's evaluated that always on a kind of a weekly basis, whether or not he would be back on the bench. As you know he's been participating in the decisions of these cases with the exception of the ones they heard in November. So, you know, assuming that he still feels, you know, up to the task, I think that, you know, we can expect him back on the bench which is something that a lot of people had said when he announced his illness they were afraid that they would not see, that serious thyroid cancer, serious illness. They were fearful he would not be able to return.

GWEN IFILL: Jan Crawford Greenburg, as always, thank you.

JAN CRAWFORD GREENBURG: You're welcome.

FOCUS - CALL FOR CHANGE

JIM LEHRER: Now, shaking up the United Nations, and to Ray Suarez.

RAY SUAREZ: As U.N. diplomats come and go from the Security Council, they pass an iconic piece of 20th century art -- a reproduction tapestry of Picasso's Guernica depicting the horror and inhumanity of war. In and out of the U.N.'s New York headquarters, a war of words has been going on for months over how to reform and bring the U.N. into the 21st century and overcome a slew of recent scandals that have rocked the 60-year-old body to its core.

KOFI ANNAN: I have called the report....

RAY SUAREZ: At the helm the last eight years Secretary-General Kofi Annan himself a man under fire fighting to save his job; today he unveiled to the general assembly the most extensive overhaul of the world body since its founding in 1945.

KOFI ANNAN: What I am proposing amounts to a comprehensive strategy. It gives equal weight and attention to the three great purposes of the organization: Development, security, and human rights. All of which must be underpinned by the rule of law.

RAY SUAREZ: The reform package calls for a total realignment of the United Nations. Annan's new chief of staff, Mark Malloch Brown:

MARK MALLOCH BROWN: An effort to align the U.N. behind what we see as the three big drivers now: Security, development, and justice or human rights and the need to show the people of the world, including Americans, what the U.N. is delivering across those three areas -- sort of daily indispensability of the U.N., the fact that global crisis-- be it be political, public health or whatever-- that the U.N. is there. In most cases if we were an electricity company or the local train company, our indispensability would be recognized because every day we're kind of making a difference in safety and stability around the world.

RAY SUAREZ: The restructuring proposal also sets out ways to make the world body more efficient, open and accountable. And it calls for a new human rights council as well as a larger Security Council. Many of the U.N.'s 191 member- nations have complained about the Security Council's make-up. It has 15 members but just five permanent members with veto power over resolutions. South Africa's ambassador, Dumisani Kumalo, wants an African on the council.

DUMISANI KUMALO: The fact that Africa doesn't have a permanent member in the Security Council. Because look at it. Permanent members of the Security Council set the agenda. Now if you went and interviewed the permanent members whether it's the U.S. or Russia or China or, you know, or the United Kingdom, they will all argue that 67 to 70 percent of their work is about Africa. But it's something else to talk about Africa and it's something else to set the agenda for Africa.

RAY SUAREZ: The Annan proposal includes an expanded council and probably a permanent seat for Africa. These reform measures come at the end of what Annan has termed an "annus horribilis," a year of horror, grabbing headlines, the oil-for-food program intended to help ordinary Iraqis suffering from international sanction, but found to be riddled with fraud. Among those implicated, Annan's own son Kojo. Another scandal: The Democratic Republic of the Congo where U.N. peacekeepers have been accused of rape and sexual abuse. All this has made for rocky U.S.-U.N. relations including calls from Capitol Hill for Annan to step down. Republican Sen. Norm Coleman led that charge and chairs the sub committee that controls American contributions to the U.N., almost a quarter of the organization's budget.

SEN. NORM COLEMAN: The sad reality was oil-for-food was mismanaged. And there was lack of oversight. There was lack of accountability. Again the question is: is the U.N.... were they moving quickly to make change or was change forced upon them? If the U.N. is to have the continued support of the United States which provides over 22 percent of its operating budget, if the... that organization is to have that support, clearly change and reform have to take place.

RAY SUAREZ: Some U.N. diplomats fear relations with the U.S. will get worse now that president bush has named John Bolton, a blunt and fierce critic of the organization, as U.N. Ambassador. Today Secretary Annan warned that any member-states' efforts to with hold dues would hurt reform efforts.

KOFI ANNAN: As to withholding dues or contributions until the reforms are implemented, if that were to happen I think it would be very unfortunate. We've been there before. We've been down that road. It took many, many years to get it undone and in the process created lots of difficulties for this organization and not only difficulties for this organization but it also complicated relations amongst member-states.

RAY SUAREZ: The future of the reform proposals belongs to world leaders who will convene in New York in September.

RAY SUAREZ: For more we're joined by two former U.N. Officials. John Ruggie was assistant secretary-general from 1997 to 2001. He's now a professor of international affairs at Harvard University's Kennedy School of Government. Richard Williamson was a senior member of the U.S. Mission to the U.N. in George W. Bush's first term, and served as assistant secretary of state for international organizations under Ronald Reagan. He now practices law in Chicago.

RAY SUAREZ: Professor Ruggie, let's start with you. You've had a chance to take a look at Kofi Annan's proposals. Is this package what the organization needs to preserve what the secretary-general has called the U.N.'s relevance?

JOHN RUGGIE: Well, Ray, I think in some ways this is vintage Kofi Annan. He is back to where he started and what made him successful in his first term. He's pushing the envelope but not so much that people can easily reject the recommendations that he's making. It's a fairly comprehensive package. It looks at the general assembly. The Security Council proposes a new human rights council, proposes a definition of terrorism, the first-ever in the history of the U.N. and also proposes an international convention to combat terrorism. So this leaves few stones unturned but it does it in a way that makes it politically possible to make progress rather than simply grandstanding.

RAY SUAREZ: Ambassador Williamson, do you agree? And do you see this package as answering some of what the critics have had to say about the U.N. recently?

RICHARD WILLIAMSON: Well, obviously there have been some serious problems. You reviewed those in your opening piece. I think from the U.S. point of view, they've said they want a more efficient, effective U.N. that's in the U.S. interest. This addresses a number of issues which the U.S. Government should like: For example, Kofi Annan's proposal on a definition of terrorism, which is terribly important; also endorsing the proliferation security initiative and finally the U.N. Democracy Fund which President Bush has supported so it has a lot of components that are very constructive. This is the second stage of the process. You had a high-level panel report. Now you have the secretary general. The next five or six months the member-states are going to have to look at it leading up to the summit in September. So I think there's things to work with. It's going to take a while to digest all the pieces. I applaud the secretary-general for forming the high level panel to look at reform and then following up with his own comprehensive proposals. These are good steps and we'll see what the member-states do over their coming months.

RAY SUAREZ: Today in his speech to the members, the secretary- general said don't just pull this apart and support the parts you like. Pass it as a package. Is there any shot, ambassador, at this being passed in that way?

RICHARD WILLIAMSON: No. It doesn't work that way. John knows that too. The members are going to look at this. The members are going to look at those which they feel advance their interest and strengthen the U.N. Large parts of this may eventually be adopted. I understand the secretary- general's desire to keep it as a whole package but that's not how it's going to be looked at and ultimately that's not how it's going to be disposed of. Hopefully some of the constructive parts will be adopted because the U.N. needs help and the member-states have to step up and take more responsibility themselves. And this proposal provides a roadmap with some very constructive things.

RAY SUAREZ: Professor Ruggie, what do you think? Does it have a shot of being implemented as written?

JOHN RUGGIE: No, I don't think anyone believes that. Certainly the secretary-general said that he hopes that it will be considered as a package. But I think the idea behind putting together a fairly comprehensive package of diverse recommendations, all of which are intended to make the place function better, the idea behind it is to avoid extreme cherry-picking so that you can't come along and say I'm only going to look at this one thing or these two things and that's all I'm going to adopt or support because for the next several months you're going to see a fairly complicated set of negotiations taking place. And, in the end, I think Rich Williamson is right, not everything will be adopted but it -- certainly trade-offs are going to have to be made including by the United States. So it will be very interesting if John Bolton is confirmed to see him at work in the corridors the way Rich Williamson has done in the past and negotiating with the other 190 member-states.

RAY SUAREZ: Professor Ruggie, you heard Ambassador Williamson talking about some of the pieces that the United States will probably like. Let me hear your list. Are there some parts that you think the U.S. will go for definitely and others that they're going to reject?

JOHN RUGGIE: I think the United States will be very enthusiastic about the U.N.'s endorsement of what essentially was a proposal from the Bush administration initially for a proliferation security initiative. I think the U.S. will be very supportive of the creation of a U.N. human rights council to replace a very discredited human rights commission. I think the U.S. will look very favorably on the definition of terrorism and the idea of a terrorist convention. It's, I'm sure, going to be less enthusiastic about the suggestion that there should be a debate and perhaps a Security Council resolution on some basic rules of the road with regard to the use of force. I think the U.S. will be reluctant to engage in that kind of a discussion. But there will be give-and-take. That's what this is all about.

RAY SUAREZ: And when you say some reluctance to talk about the rules for the use of force, is that because the United States wants to preserve its own freedom of movement in that arena?

JOHN RUGGIE: Yes, I think, you know, every country wants to maximize the degrees of freedom in making decisions. The report that the secretary- general put out today points out that the charter itself of the United Nations strongly endorses the right of self-defense. No one questions that. It endorses preemption in the right... in the face of an imminent threat, and no one questions that. The issue is how far can a threat be in the future? How potential can it be and still justify the definition of imminence? Those kinds of things, the secretary-general is urging the member-states to have a look at because, as Henry Kissinger said before the Iraq War, you don't want every country in the world adopting the principle that it can attack anybody else at will simply by presumption that a threat exists out there somewhere in the future.

RAY SUAREZ: Ambassador Williamson, one of the other proposals that the secretary-general laid out was to increase the size of the U.N. Security Council. Now, as a member of a delegation from a permanent five member, a veto-holding member, do you think that's going to be met with much favor by the current members of the Security Council?

RICHARD WILLIAMSON: I think you'll get different reactions. The U.S. has said it's open to consider expansion. It's also said it supports Japan becoming a permanent member. But remember the goal is not to expand or not expand the Security Council. It's what can make it more effective and efficient. And look at the situation right now. The world's worst humanitarian crisis is in Darfur, Sudan; 200,000 people killed in ethnic cleansing, genocide, over 1.5 million driven from their homes, internally displaced persons and refugees. Yet the Security Council has not been able to act to pass sanctions because three of the members, two of whom are permanent members, are reluctant. Let's remember a lot of this has to do with member-states stepping up and assuming their proper responsibility. And that unfortunately is an uneven record. And that has to color consideration of the best ways to reform the Security Council. So I think there's going to be a lot of discussion. There's going to be serious looks at it. But the goal is not to expand or not expand the Security Council; it's to make it more effective.

RAY SUAREZ: Another proposal is to ask the richer countries of the world to give about three quarters of 1 percent of their Gross Domestic Product to help address poverty in the developing world. And also ask developing countries to do a part -- play a part as well. Do you think the United States is going to look favorably on a levy like that?

RICHARD WILLIAMSON: Well, I don't think you can see the United States embrace an arbitrary number 0.7 percent by the secretary-general recommendation today. Again, the goal is to have effective foreign aid that has results. And President Bush has proposed and has doubled United States foreign assistance to developing countries, but he's also put it as part of the millennium challenge account to try to encourage states to do the kind of reforms like market economies, transparency, et cetera, that will develop sustainable assistance and sustainable growth for those countries. So, yeah, there's a philosophical disagreement; arbitrary contribution and results. I think you'll see the U.S. continue to advocate what makes sense to me, which is a program that has results. And the results have to be based on reforms in addition to financial assistance. President Bush again has doubled the amount of foreign assistance the U.S. is doing, but he's also trying to have that foreign assistance go to encourage the reforms for sustainable growth in the developing world.

RAY SUAREZ: Quickly before we go, Professor Ruggie, today the secretary-general said that this is an organization of 191 members and it's tough to move anything along but he called on the members to be bold. Is the U.N. in that kind of mood, to do something as comprehensive as this?

JOHN RUGGIE: Ray, it isn't only the secretary-general who has had a bad year. The U.N. has had a bad couple of years and in fact the international community as a whole has had a bad couple of years over the divisions regarding the war in Iraq and other things. And the secretary-general is saying, look, we all live on a small planet together. We have got to make this work together. This may be our last chance to put in place a comprehensive set of measures that provide for adequate collective responses to the challenges that we all face and that we can't run away from because at the end of the day there's no place else to go.

RAY SUAREZ: Professor Ruggie, Ambassador Williamson, gentlemen, thank you both.

RECAP

JIM LEHRER: Again, the major developments of this day: The parents of Terri Schiavo appealed to a federal judge to reinsert her feeding tube. And late today a gunman killed or wounded a dozen or more people at a high school in Red Lake, Minnesota. Authorities did not immediately say exactly how many died.

SOPHISTICATED SOUND

JIM LEHRER: And before we go, a song by Bobby Short, who died this morning in New York. He was a cabaret singer and New York fixture for decades, known mostly for taking his music from the so-called great American songbook, songs by Cole Porter, Duke Ellington, the Gershwins, and others. Short died of leukemia today. Here he is in a 1987 "Great Performances" celebrating George Gershwin. The song is called "Nobody But You."

SINGING: Many queens I have seen on the stage and the screen who would never do

none of them was my choice but when I met you my thumping heart right from the start

you right away, dear that's why I say dear, nobody but you -- nobody will do I have seen them all but didn't fall until I saw you -- who's locked in my heart? Who's my little yum-yum -- honey tell me who? You know it's nobody but you nobody but you --

nobody will do -- I have seen them all but didn't fall until I saw you who's locked in my heart? Who's my little yum-yum? Honey, tell me who? You know it's nobody but you

honey, tell me who? You know it's nobody but you

JIM LEHRER: Bobby Short was 80 years old. We'll see you online and again here tomorrow evening. I'm Jim Lehrer. Thank you, and good night.