The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight: A summary of the news of the day; Anthony Fauci of the National Institutes of Health; a debate between Congressmen Mica and Nadler over how to federalize the airport security system; a report on making the winter Olympics in Salt Lake City secure; and a look at today's Supreme Court arguments on an important affirmative action case.

NEWS SUMMARY

JIM LEHRER: A hospital worker in New York City died today of inhaled anthrax. It was the fourth death from the disease in the last month. Six more people are known to have inhaled anthrax. At least 7 others have contracted the less serious skin form. In New Jersey another postal worker was being tested for that skin anthrax. Still a top postal inspector said investigators confirmed only three tainted letters so far. The Justice Department today moved to bar members of 46 suspected terrorists groups from entering the country. Attorney General Ashcroft said some are linked to Osama bin Laden's terror network. The ban also includes people with any history of supporting those groups.

JOHN ASHCROFT: We are not a nation that does not welcome individuals of goodwill and individuals who respect freedom, but we are equally intent to say to those who are associated with or who are participants in, pardon me, involved with supporters of trim, you are not welcome here. And if you develop that characteristic after you get here as an alien, you will be asked to leave.

JIM LEHRER: Ashcroft denied a report the FBI was searching for six men detained and released last weekend in the Midwest. The "Miami Herald" reported they had photographs and descriptions of a nuclear power plant in Florida, and the Trans-Alaska Pipeline. It said their passports were deemed valid, and they were let go. In the military campaign in Afghanistan, the U.S. launched some of the heaviest bombing raids yet. Tom Bearden has our report.

TOM BEARDEN: Heavy B-52 bombers and other warplanes attacked at least three Taliban-controlled areas today, the 25th day of the air war. In Northern Afghanistan, U.S. troops largely on Taliban troops near the capital, Kabul, and the strategic city of Mazar-I Sharif.

REA ADMIRAL JOHN STUFFLEBEEM: The focus of the operational efforts included targets involving terrorist in Taliban command controlled location including bunkers and tunnels as well as airfield facilities.

TOM BEARDEN: The goal is to soften Taliban frontlines so that Northern Alliance ground troops can move forward. So far, the outnumbered anti- Taliban militias have made little progress. In Washington today, a Northern Alliance spokesman said the U.S. could do more to help the campaign.

HARON AMIN, Northern Alliance Spokesman: So what we've asked, certainly, is that the coalition, international coalition of forces, ought to more aggressively and intensely, with more frequency, pound Taliban positions.

TOM BEARDEN: In the Taliban- stronghold of Kandahar this morning, residents found a Red Crescent hospital badly damaged. A physician said U.S. aircraft hit the facility before dawn.

DR. OBAIDULLAH HABIB, Red Crescent Hospital (Translated): It destroyed the whole building. 15 people were killed, 25 were severely injured. Ten people were slightly injured. They destroyed all the ambulances. I don't know what we can do now.

TOM BEARDEN: The Pentagon said had not struck the hospital but struck a legitimate terrorist target nearby. Meanwhile the Defense Department said will it call up more reservists and National Guardsmen for homeland defense and other missions than originally expected, but did not specify a number. The initial plan was to activate up to 50,000 troops. About 41,000 have already been activated.

JIM LEHRER: In the Middle East today Israeli forces killed at least four Palestinians in the West Bank. In Hebron a helicopter gunship destroyed a barn, killing a Palestinian militant inside. The Israelis said he had been planning a terrorist attack. Elsewhere, a second militant died when a tank fired on his car. Israeli troops also killed at least two Palestinian security men in a chase. On the U.S. economy the Gross Domestic Product shrank in the third quarter. The Commerce Department says it fell at an annual rate of four tenths of a percent from July through September. In a speech to manufacturers in Washington President Bush said these are tough times in America.

PRESIDENT GEORGE W. BUSH: After all we're at war. And for the first time in our nation's history, part of the battlefront is here at home. Shipments particularly in the manufacturing sector have declined dramatically in recent months. And it's time for our government to act in a positive and constructive way. The Congress needs to pass a stimulus package and get it to my desk before the end of November.

JIM LEHRER: Later, Treasury Secretary O'Neill said if a stimulus plan of tax cuts and other things took effect quickly, growth in the fourth quarter could be "mildly positive." Congressional leaders promised to get moving onaviation security. After a White House meeting, House Minority Leader Gephardt said, "the main thing is we get this done." The sticking point is the status of airport security screeners. The Senate has voted to place them on the federal payroll. The President and House Republican leaders want them privately employed, under federal supervision. The House is expected to vote tomorrow. We'll have our own debate later in the program tonight.

UPDATE - ANTHRAX SCARE

JIM LEHRER: Now, more on the anthrax story, and to Ray Suarez.

RAY SUAREZ: Three days after checking herself into this Manhattan hospital, Kathy Nguyen died of inhalation anthrax about 1:00 this morning. The Vietnamese immigrant was New York's first anthrax fatality. Last night, investigators searched her Bronx apartment for clues that would explain how she contracted the disease. Initial tests for anthrax were negative, but neighbors said they were still concerned.

FRANCIS RIVERA, Neighbor: Everyone in the building is very worried because they haven't checked the mailboxes, and I'm taking my babies to the doctor now, to make sure they're alright, because she was playing with the baby, and she has asthma for two days now. So I'm on my way there.

RAY SUAREZ: Nguyen worked in the stock room of another Manhattan hospital. Her job did not involve handling mail, but the stock room had once been a mailroom. Preliminary tests there showed no anthrax spores. Still, as many as 2,000 people who have spent more than an hour in the building are being urged to take antibiotics.

GLADYS GEORGE, President, Lenox Hill Hospital: At this point, the New York City Department of Health is recommending only patients and visitors of the hospital since October 11 who spent more than an hour at the institution start a prophylactic course of antibiotic therapy as a precautionary pressure.

RAY SUAREZ: In Washington, White House spokesman Ari Fleischer said a coworker of Nguyen is under observation for suspicious symptoms.

ARI FLEISCHER: There is one person at that hospital who has a lesion. Tests have been done, are being done. The tests were just undertaken, and so it's... There's nothing even preliminary to report. If we have information on that, we will, of course, advise you.

RAY SUAREZ: Fleischer said the New York death was cause for concern, and said government agencies are investigating the case.

ARI FLEISCHER: Somebody is trying to kill the American people by mailing anthrax through the mail. And the President believes the actions of the government have saved lives. He regrets that these attacks have resulted in the loss of anybody's life.

RAY SUAREZ: The latest suspected case of anthrax involved a New Jersey postal worker. A spokesman for the post office made the announcement today.

RAY DAIUTOLO, U.S. Postal Service: We've been notified that the blood tests conducted by the Centers for Disease Control and Prevention came back positive for anthrax antibodies. Biopsy results that could confirm the diagnosis of skin anthrax are due today hopefully. The employee is receiving antibiotics. I met with him several days ago. He appears in fine health. His attitude is real good. And he is scheduled to return to work in a few days after his normal days off.

RAY SUAREZ: The employee works at the Bellmawr mail center, about 35 miles from the Hamilton Township facility that processed anthrax-laced letters addressed to NBC anchor Tom Brokaw, the "New York post," and Senate Majority Leader Tom Daschle. At the Capitol, the FBI said it still has not inspected the mail, which has arrived since Senator Daschle's letter was delivered more than two weeks ago. Daschle said that letter contained a couple of grams of anthrax, and he called for all mail to be sanitized before it's delivered.

SEN. TOM DASCHLE: In my view, all mail should be irradiated from here on out; the sooner the better. The quicker we can acquire the equipment to do that, the better. I think the American people need to be very cautious as they open their mail. But clearly, we've got to be balanced in the way we approach this. We've got to be cautious, but as time allows, we also have to ramp up and make sure we have protections in place.

RAY SUAREZ: Meanwhile, Attorney General John Ashcroft said investigators have made no progress on identifying the source of the deadly bacteria.

JOHN ASHCROFT: This is a matter of great concern to us, and not merely to the Justice Department authorities but to a number of others: State and local authorities, to the postal authorities. And we are working very hard to try and to locate the source and determine ways to prevent additional problems and threats associated with it. But I don't... I'm not in a position to be able to say to you that we are on the brink of making an announcement here.

RAY SUAREZ: And joining me now is Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, a part of the National Institutes of Health; he's the leading infectious disease expert in the federal government. Dr. Fauci and Kathy Nguyen, we appear to have now a fatality with no direct link to post offices, media outlets, or Capitol Hill. What does this latest death do to change the profile for the investigators?

DR. ANTHONY FAUCI: It may very well change the profile and what we will need as is going on right now is very intensive investigation that the authorities are carrying out, to try and determine as best as one possibly can, what potential pattern is now evolving, namely, is this workplace related. Are there or will there be any other development of disease in the workplace? If not, what other patterns can be followed, namely, her personal interactions -- in order to determine just what is going on here. When you have a single outlier like this, it's either an outlier of an already existing paradigm, which we have known and experienced for the last few weeks, namely Postal Service related, or if it is not. It might be the sentinel case in a new evolving paradigm perhaps involving other mechanisms of exposure to individuals. So now is a very intensive time to try and track that down. And that's how the evolution of investigations in public health matters occur. This is a very intensive time going on.

RAY SUAREZ: She got very sick very quickly.

DR. ANTHONY FAUCI: Correct.

RAY SUAREZ: And wasn't able to tell investigators about her movements, the things she had done over the last several days. Is it merely daunting, or is there a degree to which we'll never be able to piece together all of the parts of her life?

DR. ANTHONY FAUCI: That's always the possibility, but the way one tracks as best as possible is from her friends, associates, get a good feel for the patterns and the roots that she may have gone through -- personal things, who she interacts with, who she has social interactions with, where she goes, where she shops. All of that is part of the blanket of the investigation. Obviously, if this unfortunate woman were alive and would be able to help the investigators to retrace her steps over the previous several days to a week or so, it would be easier, but it's not impossible. You can do that kind of tracing even under the very difficult situation that we have right now.

RAY SUAREZ: Is it also hard to figure out what to do next? I mean we have seen post offices being scrubbed down and sprayed down and vacuumed. But you can't do that to the New York City subway system, can you?

DR. ANTHONY FAUCI: Obviously. If there is no definitive association with a contamination, something that tells you that this is where she got infected, then everything is open. You cannot just throw a net out and start treating everybody who she's come into contact with or even sweeping everything. Right now it's very clear that you concentrate on her place of employment, where she lives and where she has gone. If you get no clue - namely you have an isolated person with inhalation anthrax and that's it - then you really in some respects have to wait to see what happens next. Is there another emerging illness in someone associated with her? Hopefully clues will evolve that will allow health officials to be able to rapidly track just what the source of this illness was.

RAY SUAREZ: Of the ten cases of pulmonary or the inhaled form of anthrax, four have died; six appear to be on their way to recovery.

DR. ANTHONY FAUCI: Right.

RAY SUAREZ: What are some of the things that are telling the tale there? Why are some people dying and some people recovering?

DR. ANTHONY FAUCI: I think what it's telling us is that the original "conventional" wisdom-that if you get inhalation anthrax, that you are essentially dead, there is no hope even if you treat the people, because usually people present with inhalation anthrax with a advanced stage of disease-- what this is telling us now is that is not true, because when people are treated, as we see now, a good number of them are doing quite well. It also tells us something we know about all disease: There is a considerable biological variability. We call it a bell-shaped curve in biology, where some people rapidly respond well, some people fulminently deteriorate, and then there are other people somewhere in the middle. So this idea that this is a completely and rapidly and inevitably fatal disease has proven not to be the case. I think it's a combination of two things, among others: One is vigilance and alertness in identifying cases, because of the heightened sense of urgency that we have now in our society, particularly in the epidemiological setting of postal workers and people in the postal system. That's the most important thing. The other thing is the institution of treatment early in the course of the disease. Those two things, I think, have contributed greatly to not having the feared 100% mortality with inhalation anthrax.

RAY SUAREZ: Spores keep showing up in new places because of the increased attention, showing up in canvas bags, in boxes, sorting machines. Today in Indianapolis they found a sorting machine that had the spores. It was found to have been shipped from the Brentwood facility near Washington. How long do these spores remain a threat? Do they stay potent a long time?

DR. ANTHONY FAUCI: Well, there are two issues important. Spores, we know historically, particularly from our experience with anthrax in animals where animals die and the carcasses decay or are buried, they could stay indefinitely for decades. The critical issue is at what concentration. What is likely we're seeing, those lines that are connecting is that these contaminations in this facility here, and then when you carefully look and see received equipment, or what have you, from Brentwood-- secondary facilities that feed into Brentwood. It's not surprising given the fact that these spores have the capability of disseminating and depositing in different place that you'll detect variable degrees of spores at places that have the potential of contamination because of a connection with the primary facility. Hopefully -- and we're starting to feel this way-- is that most of it will be trivial contamination that will not cause disease, and as the time goes by and you have contamination and people don't get disease, that adds to that credibility of that concept. But importantly, and what is going on right now, is that authorities are not taking a chance. If you identify contamination, you close the building and you clean it up and then you let workers back when you have shown that there is no more contamination there.

RAY SUAREZ: In the almost detective part of the story, the work that epidemiologists do to try and understand this, it may sound terrible to say, but is there a way in which you need more people to get sick to really understand this?

DR. ANTHONY FAUCI: Unfortunately, at a personal level in the empathy and the feeling for people who get sick, that sounds like a terrible concept. But in the broad picture of epidemiology, that is how the epidemiology, that is how the health investigators determine patterns. You see what happens one to the other. So in some respects, the evolution of a pattern, which by its very definition involves people getting sick, determines the direction of where you're going to go with it and what you're going to do to prevent further infection. But if you just have an isolated situation, you have such a potential landscape there that it's very difficult to definitively do something without casting out such a wide net that it's almost untenable -- as it narrows down with more cases we say, we're seeing a pattern -- and the same way is when Daschle got the letter, and there was the exposure there, there was the rapid evolution of understanding that, wait a minute, there is the post office can now be a problem. And the secondary post offices that interact with the primary can be a problem. So then you have the pattern and now you jump all over anything that even smacks of something that is danger at risk. But when you then have a divergence to possibly another paradigm or another set of patterns, it's very difficult until you see how things evolve. And unfortunately, sometimes that means additional people getting sick to determine just what is going on.

RAY SUAREZ: Flu season is approaching, and we're told that the pulmonary form of the disease looks like flu, presents flu-like symptoms.

DR. ANTHONY FAUCI: Right.

RAY SUAREZ: How should people who get sick during this coming winter manage themselves?

DR. ANTHONY FAUCI: Sure. Obviously that's a very appropriate question. There are some differences, but when a person comes into an office during that period of what we call "overlap of symptoms," where the symptoms are vague -- malaise, not feeling well, fever headache, muscle aches, certainly not only flu -- influenza -- but other viral diseases can present that way. And we know from experience now that anthrax can -- particularly the beginning of inhalation anthrax -- can present that way. There are a number of fine-tuning things, there are some kits that can help you diagnose influenza -- I wouldn't put major stock on that, because it will become a question of clinical judgment. To me as a clinician and infectious disease person, a lot is going to weigh on what we call the index of suspicion giventhe circumstances that you're in. For example, if you have a pattern that, let's say, stays confined to the mail service and mail facilities being an important component of your pattern, if someone who's in Kansas who's a construction worker or in Iowa who's a business person comes in with what sounds like ordinary, run- of-the-mill symptoms that are flu-like and there is no indication there was any other disease in that setting, my index of suspicion would be quite low there -- not that I would be very cavalier about it and ignore the possibility the person might progressing. Whereas if we are in Washington, DC, and someone who's directly or indirectly with the postal system comes in and says I have a flu-like syndrome, boy, my red flags would go up very, very rapidly on that.

RAY SUAREZ: Doctor Fauci, thanks for joining us.

DR. ANTHONY FAUCI: You're welcome.

JIM LEHRER: Still to come on the NewsHour tonight, the airport security debate, Olympic security, and affirmative action before the U.S. Supreme Court.

FOCUS - OLYMPIC SECURITY

JIM LEHRER: Rethinking Olympic security since the September 11th attacks - Tom Bearden reports.

TOM BEARDEN: This is what the Olympic games are supposed to be about, intense but friendly competition between the best athletes from all over the world. But when the U.S. and Canadian women's hockey teams met in Salt Lake City recently, there was more going on than just a hockey game. Katie King plays on the U.S. team.

TOM BEARDEN: Do you think anybody's scared?

KATIE KING, U.S. National Hockey Team: Think anybody's scared? Um, yeah. I think people are scared. I think that when we're a situation like this arises, I mean, you know, you go through a lot of range of emotions. And I think, you know, it's... Our best time is on the ice because you're only think about playing hockey. But yeah, I think definitely people are scared.

TOM BEARDEN: The organizers of the Salt Lake Winter games had already planned to spend an unprecedented amount of money on security before the September 11 attacks. Olympic security has been a major issue ever since 1972 in Munich, when 11 Israeli athletes were killed by Arab terrorists. And five years ago in Atlanta, a pipe bomb injured concertgoers. So immediately after the September attacks, the chairman of Salt Lake's organizing committee, Mitt Romney, asked Washington for an extra $40 million for security, and got it.

MITT ROMNEY, President, Salt Lake Olympic Committee: The federal government has allocated approximately $200 million-- which is double that which was used in Atlanta, and those are much bigger games-- to secure the games here in Salt Lake City. That number will probably go up $30 million or $40 million more, and in addition to that, the state and our own organizing committee have about $70 million invested as well. So all totaled, we're talking about $300 million to secure the games.

TOM BEARDEN: Romney says most of that money will be spent on people: 7,000 law enforcement officers, 3,000 national guardsmen, and an undisclosed number of FBI and Secret Service agents. They have a lot of territory to protect. The venues, which have been completed and in use for some time, are spread all over the area. Hockey is in the city, but the luge, bobsled, and ski jumping competitions are 34 miles away - the downhill 53 miles out. Officials have been planning for those challenges for more than two years. But after the attacks, they went back over everything in minute detail. Robert Flowers is the coordinator of all security plans for the games.

ROBERT FLOWERS: Things are going - our venues, you know, as menial as hot dogs and things like that, we wanted to make sure that everything that went in, we knew what it was and it was checked. We were going to have businesses do their own checking, but we decided to do that ourselves now.

TOM BEARDEN: Why?

ROBERT FLOWERS: Comfort, comfort. Make sure it's being done right. We also wanted to take a look at what we call our mag and bag operation, when we have people come through magnetometers and checking bags and there were some decisions made. They're not to allow bags now inside venues.

TOM BEARDEN: Before September 11, plans were to award Olympic medals in an open park in downtown Salt Lake City. No longer.

MITT ROMNEY: Our plan is to have a medals celebration where every athlete gets their medal in the evening on nationwide TV, and participates also in a free concert that the entire community can come in and enjoy. That site is an entire city block. We've decided to take eight blocks around that site and surround them with fencing and security as well, such that people could come into downtown Salt Lake City and celebrate, have food, attend concerts, see medals events, even go to a figure skating or speed skating event, and all do that within an area that's been secured.

TOM BEARDEN: Security for the Olympic Village, where the athletes will live, will also be improved. The village will now be completely surrounded by a fence, and there will be stringent checks of credentials for anyone seeking admittance. Becky Kellar, who plays defense the Canadian woman's hockey team, finds that comforting.

BECKY KELLAR, Canadian National Hockey Team: I think there's always the concern that someone's going to get in, something going to happen. The thought's always in your mind that there could be something that's pure terrorism, but I kind of have faith in the fact that, you know, we've got all these months to prepare, and that the Americans are going to do the best they can to make it a safe situation.

TOM BEARDEN: U.S. Hockey player Julie Chu agrees.

JULIE CHU, U.S. National Hockey Team: I'm sure there are some fears out there, but I think as we hear more and more about our... The efforts that our country's making to help protect the Americans, I feel more comforted.

TOM BEARDEN: With so many venues and so many spectators, Flowers is worried more about false alarms than an actual attack.

ROBERT FLOWERS: What I'm concerned about are the hoaxes. If we have a hoax in a venue, do we need to send everybody out of the venue? Do we need to evacuate? When you talk about evacuating several thousand people out of an Olympic facility out of a hoax, somebody has to sit straight and tall to make those decisions, and I'm a little worried about that. But I think when we get there, we'll be ready.

TOM BEARDEN: Some officials even think the security measures will force terrorists to look for easier targets. But that doesn't stop Police Chief Rick Dinse from worrying. He worked in Los Angeles during the 1984 summer games.

RICK DINSE, Salt Lake City Police Chief: I lose sleep every night, and that's my job, I think. If I wasn't losing sleep and thinking and waking up and writing notes and driving my staff crazy with these things, then I'd be... I probably would be worried and derelict.

TOM BEARDEN: Do you have any specific fears?

RICK DINSE: Yeah. Fears that something terrible will happen and that we haven't thought of something, that we haven't been able to plan well enough for something and something does happen. But this is going to be a hard place toget to, a hard-- I don't mean to come to-- but a hard place to do something negative in. If this is a target, it's going to be a tough target.

TOM BEARDEN: Authorities plan to make it an even tougher target. They'll restrict air traffic around the venues for the three weeks of competition. In addition, they plan to completely shut down Salt Lake City International Airport during the opening and closing ceremonies, when more than 40,000 people will be in the Olympic stadium. Recently, members of the Salt Lake City community and a member of the International Olympic committee suggested the games be postponed until after the war. Romney says that is not an option.

MITT ROMNEY: I know the IOC indicated that there was some discussion there about what the terrorist events meant for the games. I spoke with the President of the International Olympic Committee, Dr. Jacque Roga, and he said the unanimous view of the leaders of the International Olympic Committee, the national Olympic committees from around the world, as well as our own team here came together, and that was, the games go forward.

TOM BEARDEN: The winter games are scheduled to begin February 8.

FOCUS - AFFIRMATIVE ACTION

JIM LEHRER: Now, Supreme Court arguments over affirmative action, and to Gwen Ifill.

GWEN IFILL: This case has survived six separate Secretaries of Transportation. It is now Adarand Constructors versus Mineta, a challenge to federal affirmative action laws, mounted by a Colorado construction company. For the third time, the Court is being asked to decide whether the Transportation Department program promotes reverse discrimination. The program allowed a Hispanic-owned company to win a contract that might otherwise have gone to a lower bidder who is white. For more on today's arguments we're joined by Marcia Coyle, Washington Bureau chief and Supreme Court reporter for the "National Law Journal."

So Marcia why does this case keep returning to the court? This is not the first time I'm sure we've talked about this.

MARCIA COYLE: No, that's true. I think the reason it keeps returning is the program being challenged keeps changing, and so the court has to revisit its constitutionality over and over again.

GWEN IFILL: What do you mean it keeps changing? What happens in between the times of the visits to the court?

MARCIA COYLE: Well, basically what happened in 1989 Adarand Constructors, which is a white owned highway construction company, was the low bidder on a project to install guardrails on a highway. It did not get the contract; the contract went to a Hispanic company. Adarand sued the federal government claiming that a federal program designed to give incentives to prime contractors to hire minority owned companies was reverse discrimination and violated the Constitution. The Supreme Court got the case in 1995 and it agreed with Adarand. But what was very important about the '95 decision was for the first time the Supreme Court said that federal affirmative action programs have to be tested under the constitutions most searching review what, what we call strict scrutiny. It said that under strict scrutiny the government has to show a compelling interest for making a race-based classification, as it did in this incentive program. And then it has to show that the program is narrowly tailored to meet that objective. This case went back down to the lower court to see if the program survived strict scrutiny, the lower court held that it was unconstitutional. It was appealed by the government to the Tenth Circuit, but between the time the Tenth Circuit got to look at it, the program changed. Congress amended it, revised it, got rid of the financial incentive that created the problem for Adarand in the first place. So the Tenth Circuit got the case and agreed with the lower court that the old program was unconstitutional but said the new program was not that it was narrowly tailored. So this program is now back before the Supreme Court and it's the case in which we heard arguments today.

GWEN IFILL: Who's on first it sounds like.

MARCIA COYLE: Right exactly.

GWEN IFILL: This put the Bush Administration in an interesting position -- it seemed to be defending affirmative action.

MARCIA COYLE: I think opponents of affirmative action felt they had a friend here in the Bush Administration. And the Bush Administration does oppose quotas and there was some feeling that they would come out and oppose this program.

GWEN IFILL: So what did Ted Olson -- the Solicitor General -- have to say about this today?

MARCIA COYLE: He argued the case on behalf of the federal government and he did not hesitate or flinch in his defense of this program. I think you have to understand the nature of the relationship between the Solicitor General of the United States and the Supreme Court to understand what happened here with the Bush Administration. First of all, the federal government has been defending this program in its various guises for eleven years, and if suddenly the federal government changed its position just because a new President came in, it would cast some doubt on the integrity of the government's argument. But also the Solicitor General has a responsibility to defend the laws of Congress unless there is no plausible argument that can be made.

GWEN IFILL: So how did the Justices react to the argument today?

MARCIA COYLE: This case has a lot of procedural problems. The lawyer for Adarand Constructors spent maybe five minutes on whether the program itself was constitutional and he remainder of his time putting out fires about whether this case really should be before the Supreme Court. For example, the part of the program that Adarand first challenged is no longer there. Another part of the program that it claims it's challenging it's not clear that Adarand really did challenge it in the lower court. So many of the Justices were saying what do we do with this case?

GWEN IFILL: So even Justices like presumably Justice Ginsburg, Justice Souter, people who might support affirmative action in a different case, didn't sound like, didn't sound like they were interested in taking this case?

MARCIA COYLE: No, it didn't at all. They seemed to indicate that they might dismiss it, send it back to the lower courts. Adarand did argue that if they get to the question of constitutionality, they should find that the program can't pass strict scrutiny. Adarand argues that Congress never made the required findings that there was actual discrimination in the highway construction industry in Colorado, where Adarand is based. And it also claims the program is just too broad; it's not narrowly tailored. There is a whole list of racial and ethnic groups that are presumed to be disadvantaged.

GWEN IFILL: So if there is going to be a big fight this session over affirmative action, this might not be the case. But I want to ask you about another thing that happened. This is the third day court met outside of its normal chambers because of an anthrax scare.

MARCIA COYLE: Right -- the court building was shut down last Friday. Spores were discovered in a mailroom. About 400 employees have been tested. Today the results came back and were all negative. But in the interim the Supreme Court moved down Capitol Hill to the U.S. Federal Courthouse.

GWEN IFILL: What was that like atmospherically I guess?

MARCIA COYLE: It's very different. I colleague of mine described it as akin to the New York Yankees playing the World Series at the spring training camp. It's a very nice courtroom but it lacks the marbled majesty of the Supreme Court's own courtroom.

GWEN IFILL: For those of us never inside the Supreme Court's big courtroom, I mean how different -- are you on the same level with the Justices -- are they not up high?

MARCIA COYLE: The Justices sit up high, they sit at a curved bench. They emerge at the stroke of 10:00 AM through red velvet curtains. At the U.S. Federal Courthouse they emerge from a side door and they come single file up to the bench. In a way it humanizes them.

GWEN IFILL: Some of the majesty is missing.

MARCIA COYLE: Yes.

GWEN IFILL: One more thing on affirmative action. University admissions case -- is that where we're going to actually in the end see the issue fought out?

MARCIA COYLE: I think we will. I think even if Adarand is dismissed, its impact will be very limited. It may actually come back for a fourth time once it's dealt with again by the lower courts. But I think if the court says anything about affirmative action in Adarand, it will be put under a microscope by proponents and opponents of affirmative action so see had a it might say when the university admissions program cases get to the Court. And that might be next term.

GWEN IFILL: Marcia Coyle, as always, thank you very much.

MARCIA COYLE: My pleasure.

FOCUS - AIRPORT SECURITY

JIM LEHRER: Now airport security. Kwame Holman begins.

KWAME HOLMAN: The airport security camera image of suspected September 11 hijacker Muhammad Atta, presumably carrying a weapon, helped transform American air travel. Today, it often involves careful screening, long waits, as identifications are triple- checked and manual baggage inspections. On board, many airliner cockpit doors are reinforced, passengers are on alert, and some pilots reportedly have non-lethal weapons with them in the cockpit. But the precautions have not restored the airline industry to health. According to the industry's trade group, air travel plummeted from ten million passengers per week to two million after the attacks. Ridership climbed slowly, but through the first weeks of October leveled off at about seven million passengers and hovers there, nearly three million passengers below normal. The airlines fly only 80% of their pre-September 11 schedules. Meanwhile, tens of thousands of airline industry workers took early retirement offered by their companies or simply remain laid off. President Bush called on Americans to fly again and promised legislative steps to restore confidence.

PRESIDENT GEORGE W. BUSH: Get on board. Do your business around the country. Fly and enjoy America's great destination spots. We are going to make our airline security stronger and more reliable. I will work with Congress to put the federal government in charge of passenger and bag screening and all safety inspections. (Cheers and applause) We will make our standards tougher and better and consistent all around the country. (Cheers and applause)

KWAME HOLMAN: Two weeks later, Congress acted. The Senate passed an aviation security bill unanimously.

SPOKESPERSON: The ayes are100; the nays are zero; the bill is agreed to.

KWAME HOLMAN: It calls for secure cockpit doors only flight crews can open, enough federal air marshals to put one aboard every commercial flight, background checks on anyone wishing to take flight school training, and federally employed screeners at security checkpoints under the control of the Justice Department. Currently, there are 28,000 such screeners. They work for private companies hired by the airlines, which pay $700 million a year for security services. But the screeners' pay is low. The jobs have few benefits and turnover is staggeringly high. Worse, say critics, some were found to have criminal records, and screeners repeatedly failed to detect weapons or other contraband in unannounced tests. Whether screeners should be federal workers or better trained and better paid private employees is at the center of a largely partisan struggle in the House of Representatives that's lasted for weeks. Most Democrats favor the federal workforce provision passed by the Senate and today blamed leaders of the Republican- controlled House for delaying a vote.

REP. RICHARD GEPHARDT: I've seen with my own eyes people in the seats behind me who were forming vigilante committees in case terrorists happened to appear on the flight. I've read stories about people forgetting to check their weapons and screeners who fail to stop them. And I'm baffled. I'm baffled that the House still hasn't brought up, let alone passed, strong security legislation for all Americans.

KWAME HOLMAN: Republican leaders finally scheduled floor action on aviation security for tomorrow after taking time to whip up support for keeping screeners employed by private companies but with tighter federal oversight.

SPOKESMAN: Remember, tough new standards will turn out to be toothless if President Bush is denied the flexibility to demand rigid accountability. We want to link the accountability of the federal government to the flexibility of the private sector. We support an airline security bill that empowers President Bush with the flexibility to the... That he needs to use the most effective security techniques. The Senate bill ignores that flexibility and mandates that the President pick one system.

KWAME HOLMAN: President Bush prefers the House Republican approach but might accept a federalized workforce in order to get an aviation security bill. Meanwhile, Transportation Secretary Norman Mineta yesterday ordered the government to step in to correct ongoing airport security lapses.

NORMAN MINETA: If secure areas in airports have been compromised, then we will take corrective actions to recheck passengers, including rescreening passengers. If a secure area is breached, FAA agents will empty the concourse, rescreen passengers, and if necessary, hold flights.

KWAME HOLMAN: The airlines' trade group says nervousness about safety remains a deterrent to getting some people to fly. And a new aviation security law will go a long way toward putting people at ease and back on airplanes.

JIM LEHRER: Now to our debate about that law: Congressman John Mica, Republican of Florida, chairs the House Aviation Subcommittee, and we plan to be joined here in a moment by Congressman Jerrold Nadler of New York, who is a member of the House Transportation and Infrastructure Committee. Congressman Mica, why does it matter whether or not these airport screeners are federal employees or not?

REP. JOHN MICA: Well that's Jim evolved into the main political question, but there is a larger question and that's how we develop a comprehensive plan for not only aviation, but transportation security. And that's what the Senate bill fails to do. And that's why we've tried to put a much more comprehensive package together on the House side.

JIM LEHRER: But on the scanners issue, you feel strongly that they should not be federal employees, is that right?

REP. JOHN MICA: Well, actually our bill says they may be federal employees. We require federal - fist we take away from the airlines a federal responsibility for the screening process; it becomes a federal process. We have federal managers, federal supervision, we have federal background checks, federal testing, and also most importantly, federal oversight. We model a European model. They tried federalization in the 80s and then they went to a public-private partnership. Besides we're creating a bureaucracy, Jim, that's bigger than the Department of State, the Department of Labor, HUD, Energy or the Department of Education. 28 to 30,000 federal baggage screeners, we could have a secretary of baggage screening, that doesn't answer our problem. We have to have a comprehensive security package, and so it's become a political question that we make these all federal employees. And screeners are only part of the aviation and transportation security arrangement and plan that we need in place.

JIM LEHRER: But it's the screeners issue that's held this thing up, is it not?

REP. JOHN MICA: Unfortunately that's been the political part.

JIM LEHRER: But from your point of view, go back to my first question, what difference does it make if they're federal... Is the problem that it creates a new bureaucracy?

REP. JOHN MICA: Absolutely, partly a bureaucracy. I chaired Civil Service for four years in the House. We tried to get performance standards in place for current federal employees and it was defeated every time. Performance standards are very important. At least if you have federal supervision, strong federal supervision and management and then strong oversight, if you have the proper guidance and we employ some of these people in the private sector, they could be fired immediately. Our nuclear plants, Jim, our bases overseas, in fact, 20 some federal actions... Agency agencies employ federal private security, so with the proper standards in place we think they could do the job.

JIM LEHRER: You said the political issue has become the scanners and Congressman Nadler by the way just for the record is caught in traffic -- there are some traffic problems out here on the highway that goes by our studio. That's the reason he has not arrived yet. Let me play devil's advocate. The basic complaint seems to be that you Republicans object to the possibility that these 28,000 scanners would be Democrats, is that right, because they would be union members and then Democrats?

REP. JOHN MICA: That's been raced as an issue -- I haven't really raised that as an issue. Some of the unions have now gotten into the fray; they're putting ads on the Washington area screen. That's not the issue. I'm more concerned about the meat in the bill. For example, the Senate bill has no provision for rule making. The problems of September 11, the Senate bill will take us back to September 10th -- we haven't been able to get in rules to put yet the very best equipment, the very best technology, because it takes 3.8 years on average to get a rule through the Department of Transportation. With rules for standards for baggage screeners it's been six years and tonight we still don't have in place a rule. The Senate bill does not even address, not even mention, giving someone the responsibility and authority to put rules in place on an immediate basis and that's critical.

JIM LEHRER: But what you would say to today somebody who's saying it's all well and good to sit here and criticize the Senate bill - the Senate Bill at least has done something - they have passed that bill 100-1 and the House six weeks later has done absolutely nothing.

REP. JOHN MICA: That's not true; they passed a bill after two hearings. We conducted extensive hearings. We conducted hearings over three or four weeks. We had five open hearings, two closed hearings; we brought in experts from around the world and the United States. We said what's the best and where are our flaws? We incorporated it into one bill. We had agreement between Democrats and Republicans on the House side on the measure. The thing that tore us apart was the question of these federalized screeners. Ironically the Senate bill leaves up leaving federal law enforcement under the Department of Transportation and transferring 28,000 screeners to Justice in a bifurcated, really bifurcated disjointed organization. So that's any problem with their bill.

JIM LEHRER: But the screener thing is a deal breaker for you, is it not?

REP. JOHN MICA: It is. It would be unfortunate if that passed the Senate bill, that we don't get this to conference and straighten this out. The American people deserve the very best aviation and transportation security provisions and the Senate bill, which was hastily put together and I think they that tried do the best they could. They tossed it to us and now we have a vote to -- unfortunately on a political basis to decide what security plan we're going to have in place.

JIM LEHRER: And there is going to be a vote tomorrow?

REP. JOHN MICA: The Rules Committee just finished a rule and there will be up and down votes on both of the issues. So we're not playing games. Again we want the very best provisions. I fly, my family flies. All Americans use our transportation system. We need a comprehensive good plan and hopefully that's what we'll get.

JIM LEHRER: Do you agree with Secretary Mineta that the system is still full of holes despite what happened on September 11?

REP. JOHN MICA: Oh, absolutely, and the Senate bill does not one thing to adjust them. Again, the biggest problem is rule making, getting in place, for example, technologies -- technologies that would detect wet plastic weapons like they may have taken on board some of the aircraft on September 11. That technology isn't still in place because we can't get a rule passed. The Senate bill does nothing to address that problem. So it would be a sad day if we passed Senate bill.

JIM LEHRER: All right. As is obvious, Congressman Nadler did not show. So we're going to leave it there. Congressman Mica, thank you very much.

REP. JOHN MICA: Thank you, Jim, good to be with you.

ESSAY

JIM LEHRER: A reminder that the reason Congressman Nadler was not here is because of a traffic jam between here and downtown Washington.

JIM LEHRER: Finally tonight instead essayist Richard Rodriguez of the Pacific News Service considers some very special obituaries.

RICHARD RODRIGUEZ: When most people die, the only public notice taken is on the obituary page of the local newspaper. There near the classified ads and the weather map the dates of a person's birth and death are recorded. An entire life is surveyed in a paragraph of several Victorian formulas. When my dear father died earlier this year at the fine age of 96 all of the singularity of his life his charm, his pleasures, his braveries, were buried in the San Francisco Chronicle under phrases like loving husband of and faithful father of --appropriately so. The standard obituary does not mean to intrude into a life's intimacies. The standard obituary means only to record a life's passing with the unemotional inflection of a notary. On the other hand, when the famous die, Presidents and movie stars, crowds of strangers show up to pay their respects or to intrude and we expect to read a detailed obituary in part because death uncloaks the privacy enjoyed by the famous in life, but also because we want to feel close in death to the famous person we both knew so well and didn't know at all. On September 11 it was not the famous who died. A fireman whose name we did not know died. Many firemen died, bond traders died. Restaurant workers died. Secretaries died but after September 11 the New York Times changed the rules of obituary writing. The old genre collapsed. The "Times" began publishing obituaries of mundane lives, for what had shocked us about September 11 in part was that so many people were killed in the middle of their everyday lives. Gone were the formalities of Victorian prose. Instead Christine Tims is quoted remembering how she met her husband Scott at a New Year's party in 1995. A son recalls his father, Michael Jacobs, taking him to the Statute of Liberty when he was young; the world seemed too tall. The sister-in-law of Steven Tomsik remembers how he constructed sand castles on the beach for his daughter and someone recalls that Yvette Anderson, who was orphaned at 15, had braided the hair of her ten-year-old daughter the night before. Nearly two decades ago here in San Francisco when AIDS began savagely intruding in our lives, the Bay Area Reporter -- one of the city's gay newspapers -- began publishing similar homespun obituaries. As AIDS threatened the notion of the mundane, the obituary was transformed. Mere formality would not do. A lover remembered a lover; friends remembered friends in the consolations of an unexceptional life, a favorite bar, his knowledge of Turkish carpets, that last moment of his life as his mother held one hand and his lover held the other, and a friend recited the 23rd Psalm. The breakdown of the formal obituary may be related to a trend funeral directors have noticed -- the increasing number of memorial services in America, perhaps fewer Americans are consoled now by religious services. Or perhaps Americans want no longer to be afraid of death. But increasing numbers of us want to annotate ceremonies of grief with the opportunity to laugh, to tell stories -- that charmed summer vacation -- that comically disastrous Thanksgiving turkey -- the junior prom. In the 19th century when photography was new, it occurred to poor people that the photograph might grant a kind of immortality. Peasants who could not afford to have their own photographs taken decided to have a dead grandmother or more commonly a dead child photographed, men and women who new so little permanence in their lives stand forever with their dead babies in their arms. In the "New York Times" the port raft death is less mournful. Either World Trade Center obituary is accompanied by a bright photograph and unlike the celebrity obituary photograph -- the silent film star for example whose portrait as a girl of 18 accompanies an obituary of a woman in her 80s -- the World Trade Center obituaries show more recent photographs. One is struck of course by how much youth was stolen from the world on September 11. But look, the faces are smiling: The firemen, bond trader, secretary, restaurant worker, father, husband, mother, boyfriend, wife. Their smiles remind us of how much joy they found in their everyday lives. Jenny Wong smiling. An angel. And Andrew Fisher. And Scott Tims. They are each -- all brightly smiling at us even as our heartbreaks. I'm Richard Rodriguez.

RECAP

JIM LEHRER: Again, the major developments of this day: A hospital worker in New York City died of inhaled anthrax. It was the fourth such death in the last month. And the United States launched some of the heaviest bombing raids yet in Afghanistan. We'll see you online, and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.