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J. Emilio Flores for The New York Times

Capt. Kelly D. Royer took photos of Humvees in which his men died. He was removed from command, accused of being "dictatorial."

April 25, 2005
THE COMPANY | SIX MONTHS IN RAMADI
Bloodied Marines Sound Off About Want of Armor and Men
By MICHAEL MOSS

On May 29, 2004, a station wagon that Iraqi insurgents had packed with C-4 explosives blew up on a highway in Ramadi, killing four American marines who died for lack of a few inches of steel.

The four were returning to camp in an unarmored Humvee that their unit had rigged with scrap metal, but the makeshift shields rose only as high as their shoulders, photographs of the Humvee show, and the shrapnel from the bomb shot over the top.

"The steel was not high enough," said Staff Sgt. Jose S. Valerio, their motor transport chief, who along with the unit's commanding officers said the men would have lived had their vehicle been properly armored. "Most of the shrapnel wounds were to their heads."

Among those killed were Rafael Reynosa, a 28-year-old lance corporal from Santa Ana, Calif., whose wife was expecting twins, and Cody S. Calavan, a 19-year-old private first class from Lake Stevens, Wash., who had the Marine Corps motto, Semper Fidelis, tattooed across his back.

They were not the only losses for Company E during its six-month stint last year in Ramadi. In all, more than one-third of the unit's 185 troops were killed or wounded, the highest casualty rate of any company in the war, Marine Corps officials say.

In returning home, the leaders and Marine infantrymen have chosen to break an institutional code of silence and tell their story, one they say was punctuated not only by a lack of armor, but also by a shortage of men and planning that further hampered their efforts in battle, destroyed morale and ruined the careers of some of their fiercest warriors.

The saga of Company E, part of a lionized battalion nicknamed the Magnificent Bastards, is also one of fortitude and ingenuity. The marines, based at Camp Pendleton in southern California, had been asked to rid the provincial capital of one of the most persistent insurgencies, and in enduring 26 firefights, 90 mortar attacks and more than 90 homemade bombs, they shipped their dead home and powered on. Their tour has become legendary among other Marine units now serving in Iraq and facing some of the same problems.

"As marines, we are always taught that we do more with less," said Sgt. James S. King, a platoon sergeant who lost his left leg when he was blown out of the Humvee that Saturday afternoon last May. "And get the job done no matter what it takes."

The experiences of Company E's marines, pieced together through interviews at Camp Pendleton and by phone, company records and dozens of photographs taken by the marines, show they often did just that. The unit had less than half the troops who are now doing its job in Ramadi, and resorted to making dummy marines from cardboard cutouts and camouflage shirts to place in observation posts on the highway when it ran out of men. During one of its deadliest firefights, it came up short on both vehicles and troops. Marines who were stranded at their camp tried in vain to hot-wire a dump truck to help rescue their falling brothers. That day, 10 men in the unit died.

Sergeant Valerio and others had to scrounge for metal scraps to strengthen the Humvees they inherited from the National Guard, which occupied Ramadi before the marines arrived. Among other problems, the armor the marines slapped together included heavier doors that could not be latched, so they "chicken winged it" by holding them shut with their arms as they traveled.

"We were sitting out in the open, an easy target for everybody," Cpl. Toby G. Winn of Centerville, Tex., said of the shortages. "We complained about it every day, to anybody we could. They told us they were listening, but we didn't see it."

The company leaders say it is impossible to know how many lives may have been saved through better protection, since the insurgents became adept at overcoming improved defenses with more powerful weapons. Likewise, Pentagon officials say they do not know how many of the more than 1,500 American troops who have died in the war had insufficient protective gear.

But while most of Company E's work in fighting insurgents was on foot, the biggest danger the men faced came in traveling to and from camp: 13 of the 21 men who were killed had been riding in Humvees that failed to deflect bullets or bombs.

Toward the end of their tour when half of their fleet had become factory-armored, the armor's worth became starkly clear. A car bomb that the unit's commander, Capt. Kelly D. Royer, said was at least as powerful as the one on May 29 showered a fully armored Humvee with shrapnel, photographs show. The marines inside were left nearly unscathed.

Captain Royer, from Orangevale, Calif., would not accompany his troops home. He was removed from his post six days before they began leaving Ramadi, accused by his superiors of being dictatorial, records show. His defenders counter that his commanding style was a necessary response to the extreme circumstances of his unit's deployment.

Company E's experiences still resonate today both in Iraq, where two more marines were killed last week in Ramadi by the continuing insurgency, and in Washington, where Congress is still struggling to solve the Humvee problem. Just on Thursday, the Senate voted to spend an extra $213 million to buy more fully armored Humvees. The Army's procurement system, which also supplies the Marines, has come under fierce criticism for underperforming in the war, and to this day it has only one small contractor in Ohio armoring new Humvees.

Marine Corps officials disclosed last month in Congressional hearings that they were now going their own way and had undertaken a crash program to equip all of their more than 2,800 Humvees in Iraq with stronger armor. The effort went into production in November and is to be completed at the end of this year.

Defense Department officials acknowledged that Company E lacked enough equipment and men, but said that those were problems experienced by many troops when the insurgency intensified last year, and that vigorous efforts had been made to improve their circumstances.

Lt. Gen. James N. Mattis of Richland, Wash., who commanded the First Marine Division to which Company E belongs, said he had taken every possible step to support Company E. He added that they had received more factory-armored Humvees than any other unit in Iraq.

"We could not encase men in sufficiently strong armor to deny any enemy success," General Mattis said. "The tragic loss of our men does not necessarily indicate failure - it is war."

Trouble From the Start

Company E's troubles began at Camp Pendleton when, just seven days before the unit left for Iraq, it lost its first commander. The captain who led them through training was relieved for reasons his supervisor declined to discuss.

"That was like losing your quarterback on game day," said First Sgt. Curtis E. Winfree.

In Kuwait, where the unit stopped over, an 18-year-old private committed suicide in a chapel. Then en route to Ramadi, they lost the few armored plates they had earmarked for their vehicles when the steel was borrowed by another unit that failed to return it. Company E tracked the steel down and took it back.

Even at that, the armor was mostly just scrap and thin, and they needed more for the unarmored Humvees they inherited from the Florida National Guard.

"It was pitiful," said Capt. Chae J. Han, a member of a Pentagon team that surveyed the Marine camps in Iraq last year to document their condition. "Everything was just slapped on armor, just homemade, not armor that was given to us through the normal logistical system."

The report they produced was classified, but Captain Royer, who took over command of the unit, and other Company E marines say they had to build barriers at the camp - a former junkyard - to block suicide drivers, improve the fencing and move the toilets under a thick roof to avoid the insurgent shelling.

Even some maps they were given to plan raids were several years old, showing farmland where in fact there were homes, said a company intelligence expert, Cpl. Charles V. Lauersdorf, who later went to work for the Defense Intelligence Agency. There, he discovered up-to-date imagery that had not found its way to the front lines.

Ramadi had been quiet under the National Guard, but the Marines had orders to root out an insurgency that was using the provincial capital as a way station to Falluja and Baghdad, said Lt. Col. Paul J. Kennedy, who oversaw Company E as the commander of its Second Battalion, Fourth Marine Regiment.

Before the company's first month was up, Lance Cpl. William J. Wiscowiche of Victorville, Calif., lay dead on the main highway as its first casualty. The Marine Corps issued a statement saying only that he had died in action. But for Company E, it was the first reality check on the constraints that would mark their tour.

Sweeping for Bombs

A British officer had taught them to sweep the roads for bombs by boxing off sections and fanning out troops into adjoining neighborhoods in hopes of scaring away insurgents poised to set off the bombs. "We didn't have the time to do that," said Sgt. Charles R. Sheldon of Solana Beach, Calif. "We had to clear this long section of highway, and it usually took us all day."

Now and then a Humvee would speed through equipped with an electronic device intended to block detonation of makeshift bombs. The battalion, which had five companies in its fold, had only a handful of the devices, Colonel Kennedy said.

Company E had none, even though sweeping roads for bombs was one of its main duties. So many of the marines, like Corporal Wiscowiche, had to rely on their eyes. On duty on March 30, 2004, the 20-year-old lance corporal did not spot the telltale three-inch wires sticking out of the dust until he was a few feet away, the company's leaders say. He died when the bomb was set off.

"We had just left the base," Corporal Winn said. "He was walking in the middle of the road, and all I remember is hearing a big explosion and seeing a big cloud of smoke."

The endless task of walking the highways for newly hidden I.E.D.'s, or improvised explosive devices, "was nerve wracking," Corporal Winn said, and the company began using binoculars and the scopes on their rifles to spot the bombs after Corporal Wiscowiche was killed.

"Halfway through the deployment marines began getting good at spotting little things," Sergeant Sheldon added. "We had marines riding down the road at 60 miles an hour, and they would spot a copper filament sticking out of a block of cement."

General Mattis said troops in the area now have hundreds of the electronic devices to foil the I.E.D.'s.

In parceling out Ramadi, the Marine Corps leadership gave Company E more than 10 square miles to control, far more than the battalion's other companies. Captain Royer said he had informally asked for an extra platoon, or 44 marines, and had been told the battalion was seeking an extra company. The battalion's operations officer, Maj. John D. Harrill, said the battalion had received sporadic assistance from the Army and had given Company E extra help. General Mattis says he could not pull marines from another part of Iraq because "there were tough fights going on everywhere."

Colonel Kennedy said Company E's area was less dense, but the pressure it put on the marines came to a boil on April 6, 2004, when the company had to empty its camp - leaving the cooks to guard the gates - to deal with three firefights.

Ten of its troops were killed that day, including eight who died when the Humvee they were riding in was ambushed en route to assist other marines under fire. That Humvee lacked even the improvised steel on the back where most of the marines sat, Company E leaders say.

"All I saw was sandbags, blood and dead bodies," Sergeant Valerio said. "There was no protection in the back."

Captain Royer said more armor would not have even helped. The insurgents had a .50-caliber machine gun that punched huge holes through its windshield. Only a heavier combat vehicle could have withstood the barrage, he said, but the unit had none. Defense Department officials have said they favored Humvees over tanks in Iraq because they were less imposing to civilians.

The Humvee that trailed behind that day, which did have improvised armor, was hit with less powerful munitions, and the marines riding in it survived by hunkering down. "The rounds were pinging," Sergeant Sheldon said. "Then in a lull they returned fire and got out."

Captain Royer said that he photographed the Humvees in which his men died to show to any official who asked about the condition of their armor, but that no one ever did.

Sergeant Valerio redoubled his effort to fortify the Humvees by begging other branches of the military for scraps. "How am I going to leave those kids out there in those Humvees," he recalled asking himself.

The company of 185 marines had only two Humvees and three trucks when it arrived, so just getting them into his shop was a logistical chore, Sergeant Valerio said. He also worried that the steel could come loose in a blast and become deadly shrapnel.

For the gunners who rode atop, Sergeant Valerio stitched together bulletproof shoulder pads into chaps to protect their legs.

"That guy was amazing," First Sgt. Bernard Coleman said. "He was under a vehicle when a mortar landed, and he caught some in the leg. When the mortar fire stopped, he went right back to work."

A Captain's Fate

Lt. Sean J. Schickel remembers Captain Royer asking a high-ranking Marine Corps visitor whether the company would be getting more factory-armored Humvees. The official said they had not been requested and that there were production constraints, Lieutenant Schickel said.

Recalls Captain Royer: "I'm thinking we have our most precious resource engaged in combat, and certainly the wealth of our nation can provide young, selfless men with what they need to accomplish their mission. That's an erudite way of putting it. I have a much more guttural response that I won't give you."

Captain Royer was later relieved of command. General Mattis and Colonel Kennedy declined to discuss the matter. His first fitness report, issued on May 31, 2004, after the company's deadliest firefights, concluded, "He has single-handedly reshaped a company in sore need of a leader; succeeded in forming a cohesive fighting force that is battle-tested and worthy."

The second, on Sept. 1, 2004, gave him opposite marks for leadership. "He has been described on numerous occasions as 'dictatorial,' " it said. "There is no morale or motivation in his marines." His defenders say he drove his troops as hard as he drove himself, but was wrongly blamed for problems like armor. "Captain Royer was a decent man that was used for a dirty job and thrown away by his chain of command," Sergeant Sheldon said.

Today, Captain Royer is at Camp Pendleton contesting his fitness report, which could force him to retire. Company E is awaiting deployment to Okinawa, Japan. Some members have moved to other units, or are leaving the Marines altogether.

"I'm checking out," Corporal Winn said. "When I started, I wanted to make it my career. I've had enough."

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Matthew Staver/Bloomberg News

A new house goes up in Littleton, Colo. Sales of new homes rose by 12.2 percent in March and hit a record annual pace of 1.43 million
April 27, 2005
Consumers Are Wary, but Housing Remains Hot
By EDMUND L. ANDREWS

WASHINGTON, April 26 - Consumer confidence fell in April, but the nation's housing market seems hotter than ever.

Confounding most forecasters, who had expected home sales to decline last month, the government reported on Tuesday that sales of new homes rose sharply by 12.2 percent in March and hit a record annual pace of 1.43 million.

The unexpected surge came despite slightly higher mortgage rates last month, worries about slowing growth and an escalating debate about a "housing bubble" in at least some regions that many specialists argue might be on the verge of bursting.

Analysts cautioned that the estimate of home sales might be revised down slightly as new data becomes available, and they noted that consumer confidence had been shaken since March by higher gasoline prices, sluggish employment growth and this month's swoon in the stock markets.

But despite scattered signs pointing to slower growth, the strong pace of home-buying is expected to reinforce the Federal Reserve's intention to keep raising interest rates until they have reached a level that no longer serves as a stimulus for growth. The central bank is expected to raise short-term rates by another quarter point next Tuesday, to 3 percent, which would be the eighth rate increase since last June.

The Conference Board reported on Tuesday that its index of consumer confidence dropped to 97.7 in April, from 103 in March, and expectations about the next six months dropped to their lowest level in nearly two years.

The decline, steeper than forecasters had predicted, comes on the heels of signs of sluggish retail sales.

"Looking ahead, consumers do not anticipate an improvement in economic growth nor in their incomes," reported Lynn Franco, director of the Conference Board's Consumer Research Center. And many people expect it to be harder to find a job over the summer months, he said.

But Fed officials have paid relatively little heed to recent data suggesting an economic slowdown, suggesting that they are more concerned about the danger of rising inflation.

Surveys of consumer confidence provide an erratic guide at best to consumer spending, because the surveys often reflect the bad news that people have already heard rather than what they actually plan to do in the months ahead.

By contrast, analysts said the startling rise in new-home sales suggested that the real estate market might continue its expansion despite price increases of 20 percent and more over the last year in many parts of California, Florida and along the East Coast.

"It still appears that it doesn't take much to generate faster home sales," said Peter E. Kretzmer, a senior economist at Bank of America. Indeed, Mr. Kretzmer predicted that the housing market might actually gain strength because long-term interest rates have edged down a bit since March.

The relentless rise of the housing market is a growing puzzle for central bankers. The Fed fueled a housing boom after 2001 by slashing interest rates to their lowest levels since the 1950's, which caused prices to soar and allowed millions of people to cash out some of the new equity in their homes and spend it on everything from kitchens to cars.

But even though the Fed has been raising short-term rates steadily since last June, the long-term interest rates that determine mortgage rates are still about as low today as they were one year ago.

Alan Greenspan, the Fed's chairman, told House lawmakers in February that the continued low level of long-term interest rates was a "conundrum" that he could not fully explain. Several economists have suggested that huge inflows of foreign savings into the government bond and mortgage markets have also played a significant role in keeping interest rates low.

And while Fed officials have argued that there is little danger of a national housing bubble, they have acknowledged concerns that low interest rates may have encouraged speculative buying by people who have unrealistic expectations about future price increases.

"Low interest rates, in turn, have been a major force driving the phenomenal run-up in residential real estate prices over the past few years," Donald L. Kohn, a Fed governor, said in a speech last week. Though he discounted worries about a crash in real estate prices, Mr. Kohn said that prices had climbed high enough to "raise questions" about an increase in speculative buying and overvaluations.

Analysts said part of last month's rush to buy homes probably reflected a race by people to complete deals before mortgage rates start to climb higher. But a growing number of Wall Street economists are convinced that a housing bubble is under way, at least in many parts of the country.

Housing starts declined precipitously last month, which may have reflected an expectation among builders that higher interest rates would stifle demand later in the year. But sales of existing homes climbed 1 percent in March and have climbed 4.9 percent over the last year, according to the National Association of Realtors.

"We think there is a bubble, and we think the risks are higher that it will burst," said Sheryl King, a senior economist at Merrill Lynch. "Even if you adjust for population growth, you're seeing numbers that are bigger than any we have seen at this point in any previous economic cycle."

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Pool photo by Eric Neitzel

Debbie Rowe, right, leaves court in Santa Maria, Calif., on Wednesday. She was married to Michael Jackson for three years.

Jackson's Ex-Wife Says She Praised Him as Part of Deal
By JOHN M. BRODER

SANTA MARIA, Calif., April 27 - Michael Jackson's ex-wife, the mother of two of his three children, testified at his molesting trial on Wednesday that she had made a videotape praising Mr. Jackson to help repair his image after the broadcast of a documentary in which he admitted sharing his bed with young boys.

Debbie Rowe, who was married to Mr. Jackson for three years before they divorced in 1999, said she sat for a nine-hour videotaped interview in February 2003 after being told that by doing so she would be allowed to see Mr. Jackson and their two children, Prince Michael, now 8, and Paris, now 7. Ms. Rowe, a prosecution witness, said that she had not seen any of them in several years and that the promised reunion never occurred.

Ms. Rowe said Mr. Jackson had asked her in a telephone conversation to make the videotape because the documentary was "full of lies" about his relations with children. She said the phone call had been arranged by several associates of Mr. Jackson who are named as unindicted co-conspirators in the 10-count indictment of Mr. Jackson.

Her testimony was the first to link Mr. Jackson directly to the men who, prosecutors contend, conspired to kidnap the family of the boy, now 15, who has accused Mr. Jackson of molesting him and to force them to make a videotape attesting to his character.

Mr. Jackson is charged with four counts of child molesting, one count of attempted child molesting and four counts of giving alcohol to a minor to aid in sexual abuse, in addition to the conspiracy count.

Ms. Rowe said that though she was married to Mr. Jackson and bore two children by him, she never lived with them. She received limited visits with the children after the divorce and later gave up all parental rights. She is currently fighting in court to have her visiting rights restored.

Ms. Rowe had been an assistant to Mr. Jackson's dermatologist and said she had known Mr. Jackson for more than 20 years. She smiled at the defendant several times during her 40 minutes on the stand on Wednesday. Her testimony is expected to continue on Thursday.

Ms. Rowe said she had been happy to participate in the videotaped interview because she had been led to believe it would bring her back in contact with her children. She insisted that the interview, conducted by Mr. Jackson's associates, had not been scripted and that she had not seen any of the questions in advance.

"I was excited to see Michael and the children," she said, her voice cracking with emotion, "to be reintroduced to them and to be reacquainted with their dad."

She added, "He's my friend."

Near the end of the day's testimony, Ms. Rowe said she had given some untruthful answers during the taped interview. Mr. Jackson's lead lawyer, Thomas A. Mesereau Jr., repeatedly objected when Ronald J. Zonen, the assistant district attorney handling the questioning of Ms. Rowe, tried to establish which of her answers were false. But just before the day's testimony ended, she said she gave untruthful answers to questions about her opinion of Mr. Jackson's fitness as a parent.

Prosecutors are expected to pursue this line of questioning on Thursday and to show excerpts from the videotaped interview.

Earlier on Wednesday, Judge Rodney S. Melville of Santa Barbara County Superior Court denied a request by the defense to declare a mistrial on the basis of what one of Mr. Jackson's lawyers called prosecutorial misconduct. Out of the presence of the jury, the lawyer, Robert M. Sanger, said in his motion that Gordon Auchincloss, a senior deputy district attorney, had raised issues in his questioning of Mr. Jackson's personal filmmaker, Hamid Moslehi, that the judge had earlier ruled out of bounds.

Mr. Auchincloss had questioned Mr. Moslehi about his filming of a Jackson interview conducted by Martin Bashir, a British journalist, and had used the words "sleeping with boys" in a reference to Mr. Jackson's activities.

Though the judge agreed that the wording should not have been used, he denied the request for a mistrial.


Nick Madigan contributed reporting for this article.

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Frank Rich

April 24, 2005
OP-ED COLUMNIST
A High-Tech Lynching in Prime Time
By FRANK RICH

Whatever your religious denomination, or lack of same, it was hard not to be swept up in last week's televised pageantry from Rome: the grandeur of St. Peter's Square, the panoply of the cardinals, the continuity of history embodied by the joyous emergence of the 265th pope. As a show of faith, it's a tough act to follow. But that has not stopped some ingenious American hucksters from trying.

Tonight is the much-awaited "Justice Sunday," the judge-bashing rally being disseminated nationwide by cable, satellite and Internet from a megachurch in Louisville. It may not boast a plume of smoke emerging from above the Sistine Chapel, but it will feature its share of smoke and mirrors as well as traditions that, while not dating back a couple of millenniums, do at least recall the 1920's immortalized in "Elmer Gantry." These traditions have less to do with the earnest practice of religion by an actual church, as we witnessed from Rome, than with the exploitation of religion by political operatives and other cynics with worldly ends. While Sinclair Lewis wrote that Gantry, his hypocritical evangelical preacher, "was born to be a senator," we now have senators who are born to be Gantrys. One of them, the Senate majority leader, Bill Frist, hatched plans to be beamed into tonight's festivities by videotape, a stunt that in itself imbues "Justice Sunday" with a touch of all-American spectacle worthy of "The Wizard of Oz."

Like the wizard himself, "Justice Sunday" is a humbug, albeit one with real potential consequences. It brings mass-media firepower to a campaign against so-called activist judges whose virulence increasingly echoes the rhetoric of George Wallace and other segregationists in the 1960's. Back then, Wallace called for the impeachment of Frank M. Johnson Jr., the federal judge in Alabama whose activism extended to upholding the Montgomery bus boycott and voting rights march. Despite stepped-up security, a cross was burned on Johnson's lawn and his mother's house was bombed.

The fraudulence of "Justice Sunday" begins but does not end with its sham claims to solidarity with the civil rights movement of that era. "The filibuster was once abused to protect racial bias," says the flier for tonight's show, "and now it is being used against people of faith." In truth, Bush judicial nominees have been approved in exactly the same numbers as were Clinton second-term nominees. Of the 13 federal appeals courts, 10 already have a majority of Republican appointees. So does the Supreme Court. It's a lie to argue, as Tom DeLay did last week, that such a judiciary is the "left's last legislative body," and that Justice Anthony Kennedy, a Reagan appointee, is the poster child for "outrageous" judicial overreach. Our courts are as highly populated by Republicans as the other two branches of government.

The "Justice Sunday" mob is also lying when it claims to despise activist judges as a matter of principle. Only weeks ago it was desperately seeking activist judges who might intervene in the Terri Schiavo case as boldly as Scalia & Co. had in Bush v. Gore. The real "Justice Sunday" agenda lies elsewhere. As Bill Maher summed it up for Jay Leno on the "Tonight" show last week: " 'Activist judges' is a code word for gay." The judges being verbally tarred and feathered are those who have decriminalized gay sex (in a Supreme Court decision written by Justice Kennedy) as they once did abortion and who countenance marriage rights for same-sex couples. This is the animus that dares not speak its name tonight. To paraphrase the "Justice Sunday" flier, now it's the anti-filibuster campaign that is being abused to protect bias, this time against gay people.

Anyone who doesn't get with this program, starting with all Democrats, is damned as a bigoted enemy of "people of faith." But "people of faith," as used by the event's organizers, is another duplicitous locution; it's a code word for only one specific and exclusionary brand of Christianity. The trade organization representing tonight's presenters, National Religious Broadcasters, requires its members to "sign a distinctly evangelical statement of faith that would probably exclude most Catholics and certainly all Jewish, Muslim or Buddhist programmers," according to the magazine Broadcasting & Cable. The only major religious leader involved with "Justice Sunday," R. Albert Mohler Jr. of the Southern Baptist Theological Seminary, has not only called the papacy a "false and unbiblical office" but also told Terry Gross on NPR two years ago that "any belief system" leading "away from the cross of Christ and toward another way of ultimate meaning, is, indeed, wicked and evil."

Tonight's megachurch setting and pseudoreligious accouterments notwithstanding, the actual organizer of "Justice Sunday" isn't a clergyman at all but a former state legislator and candidate for insurance commissioner in Louisiana, Tony Perkins. He now runs the Family Research Council, a Washington propaganda machine devoted to debunking "myths" like "People are born gay" and "Homosexuals are no more likely to molest children than heterosexuals are." It will give you an idea of the level of Mr. Perkins's hysteria that, as reported by The American Prospect, he told a gathering in Washington this month that the judiciary poses "a greater threat to representative government" than "terrorist groups." And we all know the punishment for terrorists. Accordingly, Newsweek reports that both Justices Kennedy and Clarence Thomas have "asked Congress for money to add 11 police officers" to the Supreme Court, "including one new officer just to assess threats against the justices." The Judicial Conference of the United States, the policy-making body for the federal judiciary, has requested $12 million for home-security systems for another 800 judges.

Mr. Perkins's fellow producer tonight is James Dobson, the child psychologist who created Focus on the Family, the Colorado Springs media behemoth most famous of late for condemning SpongeBob SquarePants for joining other cartoon characters in a gay-friendly public-service "We Are Family" video for children. Dr. Dobson sees same-sex marriage as the path to "marriage between a man and his donkey" and, in yet another perversion of civil rights history, has likened the robed justices of the Supreme Court to the robed thugs of the Ku Klux Klan. He has promised "a battle of enormous proportions from sea to shining sea" if he doesn't get the judges he wants.

Once upon a time you might have wondered what Senator Frist is doing lighting matches in this tinderbox. As he never ceases to remind us, he is a doctor - an M.D., not some mere Ph.D. like Dr. Dobson - with an admirable history of combating AIDS in Africa. But this guy signed his pact with the devil even before he decided to grandstand in the Schiavo case by besmirching the diagnoses of neurologists who, unlike him, had actually examined the patient.

It was three months earlier, on the Dec. 5, 2004, edition of ABC News's "This Week With George Stephanopoulos," that Dr. Frist enlisted in the Perkins-Dobson cavalry. That week Bush administration abstinence-only sex education programs had been caught spreading bogus information, including the canard that tears and sweat can transmit H.I.V. and AIDS - a fiction that does nothing to further public health but is very effective at provoking the demonization of gay men and any other high-risk group for the disease. Asked if he believed this junk science was true, the Princeton-and-Harvard-educated Dr. Frist said, "I don't know." After Mr. Stephanopoulos pressed him three more times, this fine doctor theorized that it "would be very hard" for tears and sweat to spread AIDS (still a sleazy answer, since there have been no such cases).

Senator Frist had hoped to deflect criticism of his cameo on "Justice Sunday" by confining his appearance to video. Though he belittled the disease-prevention value of condoms in that same "This Week" interview, he apparently now believes that videotape is just the prophylactic to shield him from the charge that he is breaching the wall separating church and state. His other defense: John Kerry spoke at churches during the presidential campaign. Well, every politician speaks at churches. Not every political leader speaks at nationally televised political rallies that invoke God to declare war on courts of law.

Perhaps the closest historical antecedent of tonight's crusade was that staged in the 1950's and 60's by a George Wallace ally, the televangelist Billy James Hargis. At its peak, his so-called Christian Crusade was carried by 500 radio stations and more than 200 television stations. In the "Impeach Earl Warren" era, Hargis would preach of the "collapse of moral values" engineered by a "powerfully entrenched, anti-God Liberal Establishment." He also decried any sex education that talked about homosexuality or even sexual intercourse. Or so he did until his career was ended by accusations that he had had sex with female students at the Christian college he founded as well as with boys in the school's All-American Kids choir.

Hargis died in obscurity the week before Dr. Frist's "This Week" appearance. But no less effectively than the cardinals in Rome, he has passed the torch.

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Bernie Ecclestone and Giancarlo Minardi
F1 > San Marino GP, 2005-04-22 (Imola): Friday practice 1

 

Barry Blitt

OP-ED COLUMNIST
Get Tom DeLay to the Church on Time
By FRANK RICH

A scandal is like any other melodrama: It can't be a crowd pleaser unless the audience can follow the plot. That's why Monica Lewinsky trumped Whitewater, and that's why of all the story lines ensnaring Tom DeLay, the one with legs is the one with the craps tables. It's not just easy to follow, but it also has a combustive cultural element that makes it as representative of its political era as Monicagate was of the Clinton years. As the lies and subterfuge of the go-go 1990's coalesced around sex, so the scandal of our new "moral values" decade comes cloaked in religion. The hair shirt is the new thong.

This time the plot begins with money. Two K Street fixers, a lobbyist named Jack Abramoff and a flack named Michael Scanlon, managed to snooker six American Indian tribes into handing over $82 million in exchange for furthering their casino interests. According to The Washington Post, some of their tribal takings, cycled through a nonprofit center for "public policy research," helped send Mr. DeLay golfing in Scotland. The pious congressman, a gambling foe, says he had no idea of his trip's sinful provenance. Never mind that Mr. DeLay was joined abroad by Mr. Abramoff, whom he has described as one of his "closest and dearest friends," or that Mr. Scanlon had once been his spokesman. Mr. DeLay was as innocent of the goings-on around him as a piano player in a brothel.

Beltway cronyism, dubious junkets, loophole-laden denials are all, of course, time-honored Washington fare. The few on the right backing away from Mr. DeLay, from The Wall Street Journal's editorial page to Newt Gingrich, make a point of reminding us of that. As they see it, more in sorrow than in anger, the Gingrich revolutionaries who vowed to end the corruption practiced by Congressional Democrats have now been infected by the same Washington virus as their opponents. That's true, but this critique of Mr. DeLay and company by their own camp all too conveniently sidesteps the distinguishing feature of this scandal. Democratic malefactors like Jim Wright and L.B.J.'s old fixer Bobby Baker didn't wear the Bible on their sleeves.

In the DeLay story almost every player has ostentatious religious trappings, starting with the House majority leader himself. His efforts to play God with Terri Schiavo were preceded by crusades like blaming the teaching of evolution for school shootings and raising money for the Traditional Values Coalition's campaign to save America from the "war on Christianity." Mr. DeLay's chief of staff was his pastor, and, according to Time magazine, organized daily prayer sessions in their office. Today this holy man, Ed Buckham, is a lobbyist implicated in another DeLay junket to South Korea.

But it's not merely Christian denominations that figure in the religious plumage of this crowd. Mr. Abramoff, who is now being investigated by nearly as many federal agencies as there are nights of Passover, is an Orthodox Jew who in his salad days wore a yarmulke to press interviews. In Washington, he opened not one but two kosher restaurants (I hear the deli was passable by D.C. standards) and started a yeshiva. His uncompromising piety drove him to condemn the one Orthodox Jew in the Senate, Joe Lieberman, for securing "the tortuous death of millions" by supporting abortion rights. Mr. Abramoff's own moral constellation can be found in e-mail messages in which he referred to his Indian clients as "idiots" and "monkeys" even as he squeezed them for every last million. A previous client was Zaire's dictator, Mobutu Sese Seko, who, unlike Senator Lieberman, actually was a practitioner of torture and mass murder.

Another Abramoff crony is the political operative Ralph Reed, whom Mr. Abramoff hired for his College Republicans operation in the early 1980's. Mr. Reed, who has called gambling "a cancer on the body politic" and is running for lieutenant governor in Georgia, is now busily explaining that he, like Mr. DeLay, had no idea that some of his consulting firm's Abramoff-Scanlon paydays ($4.2 million worth) were indirect transfers of casino dough. Mr. Reed, of course, is best known for his stint as the public altar boy's face of Pat Robertson's political machine, the Christian Coalition.

It was at a Christian Coalition convention in Washington in 1994 that I first encountered yet another religious figure who pops up in this tale, the South African-born Rabbi Daniel Lapin. He was regaling the crowd with scriptural passages proving that high taxes are "immoral." Now the show rabbi of the Christian right, Rabbi Lapin has moved on to bigger broadcast pulpits. When he's not preaching the virtues of "The Passion of the Christ," he is chastising "Meet the Fockers" for promoting "vile notions of Jews" that "are not too different from those used by Nazi propagandist Joseph Goebbels." He apparently didn't like the idea that Barbra Streisand and Dustin Hoffman played characters who enjoy sex.

Rabbi Lapin, according to Slate, is the networker who jump-started the mutually beneficial business relationship of Jack Abramoff and Tom DeLay by introducing them in the early 90's. That was some mitzvah. As Marshall Wittmann, a former Christian Coalition lobbyist who later jumped to the Democratic Leadership Council, told me recently, "We now see the meaning of Judeo-Christian values."

The values alleged so far in this scandal - greed, hypocrisy, favor-selling, dissembling - belong to no creed except the ruthless pursuit of power. They are not exclusive to either political party. But the religious trappings add a note that distinguishes these Beltway creeps from those who have come before: a supreme righteousness that often spirals into anger and fire-and-brimstone zealotry that can do far more damage to America than ill-begotten golf junkets.

It's not for nothing that Mr. DeLay's nickname is the Hammer. Or that early in his Christian Coalition career, Ralph Reed famously told a Knight-Ridder reporter that he wanted to see his opponents in a "body bag." The current manifestation of this brand of religious politics can be found in the far right's anti-judiciary campaign, of which Mr. DeLay is the patron saint. As he flew off to the pope's funeral in Rome, the congressman left behind a rabble-rousing video for a Washington conference on "Confronting the Judicial War on Faith" staged by a new outfit called The Judeo-Christian Council for Constitutional Restoration. Another speaker, a lawyer named Edwin Vieira, twice invoked a Stalin dictum whose unexpurgated version goes, "Death solves all problems; no man, no problem." The reporter who covered the event for The Washington Post, Dana Milbank, suggested in print that one prime target of the vitriol, Supreme Court Justice Anthony Kennedy, might want to get "a few more bodyguards." It wasn't necessarily a joke.

You can see why Dick Cheney and President Bush in rapid succession distanced themselves from Mr. DeLay's threats of retribution against judges who presided in the Schiavo case. If an Eric Rudolph murders a judge in close chronological proximity to that kind of rhetoric, they've got a political Armageddon on their hands. Mr. DeLay got the message, sort of. At his Wednesday news conference, he tried to dial back some of his words, if only as a way of changing the subject from Indians and his own potential outings in a court of law. Unlike Bill Frist, he has yet to sign on to next Sunday's national Christian right telecast bashing what its organizer, the Family Research Council, calls "out-of-control courts."

Many believe that Mr. DeLay's legal fate is tied to that of Mr. Abramoff, whom the congressman has now downsized into one of "hundreds of relationships I have in Washington, D.C." Mr. Abramoff, intriguingly enough, hasn't always been a creature of the capital. He was raised in Beverly Hills, the town that is supposed to be anathema to every value that Republican theocrats stand for. And he returned there for a time in the late 1980's, when he produced an anti-Communist action film called "Red Scorpion." Once it was reported that extras and military equipment had been supplied by South Africa's racist government, Arthur Ashe's Artists and Athletes Against Apartheid condemned the film, and no major studio would touch it. But it opened nationwide nonetheless, to few customers and many protesters.

In 1992 Mr. Abramoff, eager to prove that he was unlike secular show-business Democrats, told The Hollywood Reporter that he was starting a Committee for Traditional Jewish Values in Entertainment to emulate Christian anti-indecency campaigns. (He didn't.) But "Red Scorpion," on which Mr. Abramoff shares the writing credit, has many more four-letter words than "Meet the Fockers," as well as violence, bloodied beefcake (Dolph Lundgren's) and crucifixion imagery anticipating "The Passion of the Christ."

Though Mr. Abramoff has closed his yeshiva and is now being sued for back wages by its former employees, his cinematic creation survives on DVD. "Red Scorpion" is seriously Godawful, but, unlike the Ten Commandments displayed in Tom DeLay's office, it may yet endure as a permanent monument to what these people are about.



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The Unregulated Offensive
By JEFFREY ROSEN

I. Justice Thomas's Other Controversy

If you think back to Clarence Thomas's Supreme Court confirmation hearings in 1991, what most likely comes to mind are the explosive allegations of sexual harassment made by the law professor Anita Hill. Years from now, however, when observers of the court look back on the hearings, they may well focus on a clash that preceded Hill's accusations -- an acrimonious exchange that few remember today.

Early in the hearings, Joseph Biden, the Delaware Democrat who was chairman of the Senate Judiciary Committee, voiced a concern about Thomas's judicial philosophy. In particular, he singled out a speech that Thomas gave in 1987 in which he expressed an affinity for the ideas of legal scholars like Richard A. Epstein. A law professor at the University of Chicago, Epstein was notorious in legal circles for his thesis that many of the laws underpinning the modern welfare state are unconstitutional. Thomas tried to assure Biden that he was interested in ideas like Epstein's only as a matter of ''political theory'' and that he would not actually implement them as a Supreme Court justice. Biden, apparently unpersuaded, picked up a copy of Epstein's 1985 book, ''Takings: Private Property and the Power of Eminent Domain,'' and theatrically waved it in the air. Anyone who embraced the book's extreme thesis, he seemed to be suggesting, was unfit to sit on the court.

At the time, it was impossible to know whether Biden was right to worry. He was surely right, though, that Epstein was promoting a legal philosophy far more radical in its implications than anything entertained by Antonin Scalia, then, as now, the court's most irascible conservative. As Epstein sees it, all individuals have certain inherent rights and liberties, including ''economic'' liberties, like the right to property and, more crucially, the right to part with it only voluntarily. These rights are violated any time an individual is deprived of his property without compensation -- when it is stolen, for example, but also when it is subjected to governmental regulation that reduces its value or when a government fails to provide greater security in exchange for the property it seizes. In Epstein's view, these libertarian freedoms are not only defensible as a matter of political philosophy but are also protected by the United States Constitution. Any government that violates them is, by his lights, repressive. One such government, in Epstein's worldview, is our government. When Epstein gazes across America, he sees a nation in the chains of minimum-wage laws and zoning regulations. His theory calls for the country to be deregulated in a manner not seen since before Franklin D. Roosevelt's New Deal.

After Thomas joined the Supreme Court, Biden's warnings seemed prescient. In 1995, echoes of Epstein's ideas could be clearly heard in one of Thomas's opinions. By a 5-4 majority in United States v. Lopez, the court struck down a federal law banning guns in school zones, arguing that the law fell outside Congress's constitutional power to regulate interstate commerce. Lopez was a judicial landmark: it was the first time since the New Deal that the court had limited the power of the federal government on those grounds. Thomas, who sided with the majority, chose to write a separate opinion in which he suggested that even his conservative colleagues had not gone far enough. The real problem, he wrote, was not just with the law at hand but with the larger decision of the court during the New Deal to abandon the judicial doctrines of the 19th century that established severe limits on the government's power. He assailed his liberal colleagues for characterizing ''the first 150 years of this Court's case law as a 'wrong turn.''' He continued, ''If anything, the 'wrong turn' was the Court's dramatic departure in the 1930's from a century and a half of precedent.''

Thomas did not cite Epstein directly in his opinion. But to anyone familiar with Epstein's writings, the similarities were striking. Indeed, Thomas's argument closely resembled one Epstein had made eight years earlier in ''The Proper Scope of the Commerce Power'' in the Virginia Law Review -- so closely, in fact, that Sanford Levinson, a liberal law professor at the University of Texas, accused Thomas of outright intellectual theft. (''The ordinary standards governing attribution of sources -- the violation of which constitutes plagiarism -- seem not to apply in Justice Thomas's chambers,'' Levinson wrote in the Texas Law Review.) Biden's fear that Epstein's ideas might be written into law had apparently been realized. And the fear would continue to be realized in other courts throughout the 90's as a small but energetic set of lower-court judges, sympathetic to libertarian arguments, tried to strike down aspects of the Clean Water Act, the Endangered Species Act and other laws, challenging powers of the federal government that had come to be widely accepted during the second half of the 20th century.


Chief Justice William Rehnquist is expected to announce his resignation sometime this year, perhaps before the end of the court's current term in June. Rehnquist's retirement would create at least one confirmation hearing for a new justice, and two hearings if President George W. Bush chooses to nominate one of the current justices to be chief justice. At the same time, there is a political battle looming in the Senate over seven federal appellate-court candidates whose nominations were blocked by Senate Democrats during Bush's first term but who were renominated by the president after his re-election. Many liberals and centrists worry, and many conservatives hope, that the doctrine favored by these judicial candidates is originalism, the stated constitutional theory of Scalia. Originalists don't like interpreting the Constitution in light of present-day social developments and are generally skeptical of constitutional rights -- like the right to have an abortion -- that don't appear explicitly in the text of the Constitution. At least in theory, those in the originalist camp champion judicial restraint and states' rights.

But as Thomas's presence on the court suggests, it is perhaps just as likely that the next justice -- or chief justice -- will be sympathetic to the less well-known but increasingly active conservative judicial movement that Epstein represents. It is sometimes known as the Constitution in Exile movement, after a phrase introduced in 1995 by Douglas Ginsburg, a judge on the United States Court of Appeals for the D.C. Circuit. (Ginsburg is probably best known as the Supreme Court nominee, put forward by Ronald Reagan, who withdrew after confessing to having smoked marijuana.) By ''Constitution in Exile,'' Ginsburg meant to identify legal doctrines that established firm limitations on state and federal power before the New Deal. Unlike many originalists, most adherents of the Constitution in Exile movement are not especially concerned about states' rights or judicial deference to legislatures; instead, they encourage judges to strike down laws on behalf of rights that don't appear explicitly in the Constitution. In addition to the scholars who articulate the movement's ideals and the judges who sympathize with them, the Constitution in Exile is defended by a litigation arm, consisting of dozens of self-styled ''freedom-based'' public-interest law firms that bring cases in state and federal courts, including the Supreme Court.

Critics of the movement note, with some anxiety, that it has no shortage of targets. Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called ''Fundamentally Wrong.'' As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that ''many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power.'' In what Sunstein described as the ''extreme nightmare scenario,'' the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.

Any movement with such ambitious goals must be patient and take the long view about its prospects for success. Michael Greve, an active defender of the Constitution in Exile at Washington's conservative American Enterprise Institute, argues that to achieve its goals, the movement ultimately needs not just one or two but four more Supreme Court justices sympathetic to its cause, as well as a larger transformation in the overall political and legal culture. ''I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice,'' he says. ''We want to withdraw judicial support for the entire modern welfare state. I'd retire and play golf if I could get there.''

II. Glory Days

All restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties. Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition.

The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. The court struck down the law on the grounds that it violated the bakers' freedom of contract, which was arguably, but not explicitly, included in the 14th Amendment's protections of ''liberty'' and ''property.'' In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that ''The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,'' referring to the celebrated Social Darwinist and advocate of laissez-faire economics.

Even after the election of Roosevelt in 1932, the Supreme Court continued to invoke laissez-faire economics to strike down federal laws, including signature New Deal legislation like the National Industrial Recovery Act. In February 1937, Roosevelt threatened to pack the court with justices who would presumably be more deferential to national regulation of the economy. Within a month, the court backed down, upholding a state law imposing a minimum wage for women and minors. (The majority opinion noted that ''the unparalleled demands for relief which arose during the recent period of depression'' had dislodged old laissez-faire nostrums about the equal bargaining power of workers and employers.) The following year, in the Carolene Products case, the court announced that it would uphold all economic regulations unless no reasonable person could believe them to be rational. Today, the conventional wisdom among liberal and conservative legal thinkers alike is that Lochner was decided incorrectly and that the court's embrace of judicial restraint on economic matters in 1937 was a triumph for democracy.

Members of the Constitution in Exile movement do not share this view. Not long ago, I visited Greve in his office on 17th Street in Washington. Greve, a witty and sardonic libertarian, is the American Enterprise Institute's John G. Searle Scholar (his benefactor was a pharmaceutical magnate), and over the course of a long conversation, he explained that 1937 was, in his opinion, an unmitigated disaster, resulting in the judicial abandonment of constitutional limits on government power that are inherent in the nature of a free society and the creation of a regulatory behemoth. As the administrative state ballooned during the 60's and 70's, judicial deference became even more pervasive: new independent regulatory agencies, from the Environmental Protection Agency to the Federal Communications Commission, began issuing a slew of regulations. To Greve's dismay, much of the regulatory state is politically quite popular; even a Republican Congress, he acknowledged, seems unlikely to roll back most post-New Deal programs and regulations. ''Judicial activism will have to be deployed,'' he said. ''It's plain that the idea of judicial deference was a dead end for conservatives from the get-go.''

Now 48, Greve was born in Germany and came to embrace a libertarian outlook during his undergraduate years at the University of Hamburg, from which he graduated in 1981. That year, he visited the United States on a Fulbright and ended up at Cornell for a doctorate in government. (''I consider myself a refugee from the welfare state,'' he said with a chuckle.) His Ph.D. contrasted liberal environmental litigation in Germany and the United States. Greve was frustrated but also impressed by the way that well-financed liberal groups like Ralph Nader's Public Citizen worked in the courts to expand the reach of environmental laws, and he decided that the conservative movement needed to create organizations that would do exactly the opposite.

One of Greve's goals at the American Enterprise Institute is to convince more mainstream conservatives that traditional federalism -- which is skeptical of federal, but not state, power -- is only half right. In his view, states can threaten economic liberty just as significantly as the federal government. He is still exercised by the lawsuit brought in the 90's by 46 states against the tobacco companies, which resulted in a $246 billion settlement. ''Taking the tobacco settlement down would have a huge public impact -- that would push you in the right direction,'' he said, taking a long drag on a cigarette.

Although Greve's liberal critics have argued that resurrecting strict constitutional limits on federal and state powers would essentially mean a return to the unregulated climate of the Gilded Age, Greve emphasized that he doesn't have the Gilded Age in mind. The ''modern, vibrant, mobile'' and global economy of the 21st century, he argued, is competitive enough to regulate itself in most areas. Though he envisions a role for government in protecting against egregious forms of coercion, force and fraud, all other abuses would be regulated by private agreements among citizens. ''I don't think much would be lost if we overturned federal wetlands regulations or if we repealed the Endangered Species Act, just by way of illustration,'' he said.

Greve expressed cautious optimism that his views will get a sympathetic hearing from some of the federal appellate judges renominated this year by the president. He said he is especially happy that Bush has tapped William Pryor, the former attorney general of Alabama. Greve noted that in one of the big Supreme Court cases involving the limits of federal power, which ultimately invalidated parts of the Violence Against Women Act, Pryor wrote a brief that Greve and other libertarians greatly admired. ''Bill Pryor is the key to this puzzle; there's nobody like him,'' Greve said. ''I think he's sensational. He gets almost all of it.''

III. The Network

The idea of creating a network of activist conservative litigation groups was proposed in the early 70's by Lewis Powell, a corporate lawyer and future Supreme Court justice. In the years following the defeat of the Goldwater Republicans in 1964, conservatives were casting about for a new political strategy. At the same time, business interests were alarmed by the growth of the regulatory state and, in particular, the marked increase in environmental litigation. In 1971, Powell wrote a landmark memo for the United States Chamber of Commerce urging a counterattack. In addition to encouraging conservatives to develop a systematic and long-term effort to spread their ideas in the media, Powell recommended that conservatives should get over their aversion to judicial activism. ''Especially with an activist-minded Supreme Court,'' he wrote, ''the Judiciary may be the most important instrument for social, economic and political change.''

At the time, Powell's idea was being echoed in California by a group of conservatives close to Ronald Reagan, who had recently been re-elected governor. Reagan, who pledged to reform welfare in his 1970 campaign, set up a task force to do so, headed by his chief of staff, Edwin Meese III. The resulting reforms, which restricted welfare eligibility and cut the state's welfare rolls by more than 250,000 in three years, were attacked in the courts by liberal groups. Reagan's supporters were infuriated that there were no conservative groups that could respond in kind. ''The liberals were using the courts,'' Meese recalled recently during a conversation in his office at the Heritage Foundation in Washington. ''We wanted to make it a fair fight.''

According to a history of conservative legal activism published by Heritage, ''Bringing Justice to the People,'' the first person to take up Powell's challenge, in the early 1970's, was John Simon Fluor, a wealthy Reagan supporter. Fluor was upset that environmental groups had managed to delay the construction of the Alaska pipeline and the initiation of offshore drilling in the Gulf of Mexico. After conversations with fellow Reagan supporters, including Meese, Fluor provided the seed money for the Pacific Legal Foundation, the first conservative property-rights litigation shop in the nation. It was staffed with members of the Reagan welfare-reform team and incorporated in 1973.

Other conservative business interests quickly replicated Fluor's model. In 1975, money from the major oil companies helped to create the National Legal Center for the Public Interest, an umbrella organization for several regional litigation groups. Each group's focus was determined by its location. The most influential spinoff group to emerge was the Mountain States Legal Foundation, financed by the beer magnate Joseph Coors, which was set up in 1977 to challenge federal land-use and natural-resources regulations, long a source of political resistance in the West. (The foundation's distinguished alumni of the period include Gale Norton, now secretary of the interior, and Jon Kyl, now a senator from Arizona.)

Though these conservative groups clearly served the interests of local businesses, they also attracted a number of libertarians, many of whom were not always consistent supporters of big business. One of the more thoughtful of these is Chip Mellor, who joined the Mountain States Legal Foundation in the late 70's and is now the head of the Institute for Justice, a libertarian public-interest law firm in Washington. When I visited him recently at his office near the White House (with an impressive corner view of the Old Executive Office Building), he spoke engagingly of his youthful idealism. ''I came out of the protests of the 1960's,'' he recalled, ''where I was dissatisfied with the right and the left.'' He immersed himself in the writings of Milton Friedman, the Nobel Prize-winning free-market economist, as well as those of the libertarian novelist Ayn Rand. ''It was quite illuminating for me to read Friedman and Rand and to realize that you could not divorce economic liberty and private property rights from the truly free individual,'' Mellor said. ''I came to see that societies where those rights were taken away inevitably led to people impoverished in monetary wealth and basic liberties.''

When he was a law student at the University of Denver, Mellor saw a recruiting flier for the Mountain States Legal Foundation and was intrigued by its mention of property rights. Sporting long hair and a handlebar mustache, he showed up without an appointment, but hit it off nevertheless with the foundation's president, James Watt. (Watt would later achieve renown for his knockdown battles with environmentalists as Reagan's secretary of the interior.) By 1982, Mellor had risen to become the acting president of the foundation, and he soon hired a young law-school graduate and fellow libertarian named Clint Bolick. The two became fast friends and pledged to sustain their passion for libertarian principles above partisan politics. (A fierce defender of Clarence Thomas during his nomination battle, Bolick left the Republican Party not long ago in protest over its anti-immigrant policies and the Iraq war.)

Bolick, whose sunny idealism is hard to resist, still gets indignant when he recalls how Mellor came to part ways with Mountain States. It began when the foundation filed a free-speech lawsuit opposing an exclusive cable-TV franchise granted by the city of Denver to a local businessman who happened to be a friend of Joseph Coors. When Coors resigned from the board to protest the direction that Mountain States seemed to moving in, it set in motion a process that led, a year later, to Mellor being fired. ''Chip and I discovered that there is a world of difference between an organization that is pro-business and an organization that is pro-free enterprise,'' Bolick told me recently. ''We learned that some of the influential backers of the movement were more pro-business than pro-free enterprise.'' After the firing, Mellor said, he and Bolick sat in Mellor's backyard with tears in their eyes. ''We pledged this is wrong, and someday we're going to do it right,'' he said.

They soon got their chance. After stints in Washington with the Reagan administration, in which Mellor was a deputy general counsel at the Department of Energy and Bolick was an assistant at the Equal Employment Opportunity Commission (then led by Clarence Thomas), the two men, in 1991, persuaded Charles Koch, an oil and gas magnate, to give them $350,000 a year in seed money from his private foundation to start the Institute for Justice. (To this day, the institute does not actively solicit corporate financing, and its $6.6 million annual budget is far lower than those of its liberal counterparts, like the A.C.L.U.) Before long, Mellor and Bolick had achieved victories in lower courts for clients without deep pockets. In a series of cases, they challenged state licensing laws that made it hard for small-business entrepreneurs to break into highly regulated professions. Their successful clients included limo drivers in Las Vegas, African-American hair braiders in San Diego and casket sellers in Tennessee. When Mellor gave me a tour of his office, he proudly pointed out an engraved tombstone of appreciation from the casket sellers, which sits in the institute's reception area.

IV. The (Other) Rights of Man

Defending the right of small businessmen to challenge local monopolies may have been necessary and noble, but for the movement it represented a small piece of the puzzle. If Mellor and Bolick and others like them were to transform the Supreme Court's approach to the entire post-New Deal regulatory state -- to ''resurrect the Constitution in Exile,'' as Bolick puts it -- they would have to develop a sophisticated jurisprudential framework.

Early on, the movement found its intellectual guru in Richard Epstein. In the words of Michael Greve, Epstein is ''the intellectual patron saint of everybody in this movement.'' Like Bolick, Epstein is too much of a libertarian purist to be a party loyalist. (''Our president is a most inconsistent classical liberal, to be charitable,'' he says. ''He's terrible on trade and a huge spender and not completely candid about the parlous situation Social Security is in.'') But his devotion to -- and influence on -- the Constitution in Exile is unsurpassed.

''Takings: Private Property and the Power of Eminent Domain,'' still in print 20 years after its publication, purports to specify the conditions under which government can rightfully impose regulations and taxes that reduce the value of private property. Drawing on the political philosophy of John Locke, Epstein argues that before the existence of government, individuals in what political theorists call the ''state of nature'' have an inherent right of autonomy, which entitles them to acquire property by dint of their labor and to dispose of it only as they see fit through voluntary transfer of goods. Epstein also maintains that any form of government coercion -- including taxation or other forced transfers of wealth -- can be reconciled with the principles of personal freedom only if it makes individuals at least as well off as they were before the tax or regulation was imposed. Epstein's key insight, as the Constitution in Exile adherents see it, is that economic regulations are just as coercive as other involuntary wealth transfers. He insists that if the government wants to reduce the value of an individual's property -- with zoning restrictions, for example -- it has to compensate him for the lost value.

Moving from political theory to constitutional law, Epstein argues that the framers of the United States Constitution recognized these limitations on governmental power in the Takings Clause of the Constitution, which says that ''private property'' cannot be taken for public use ''without just compensation.'' According to Epstein, the Takings Clause prevents the government from redistributing wealth in any form without appropriate compensation and that a proper understanding of the clause calls into question ''many of the heralded reforms and institutions of the 20th century: zoning, rent control, workers' compensation laws, transfer payments,'' as well as ''progressive taxation.'' Liberal governmental reforms could be sustained, Epstein argues, only if the government were to compensate individuals for the lost value of their property or to make everyone better off in exchange for their taxes. ''This simple theory of governance could be expanded to cover all taxes, all regulations, all shift in liability schemes,'' Epstein wrote in an intellectual autobiography. ''It is also the recipe for striking down the New Deal.''

''Takings'' made Epstein a star on the Republican circuit, and he quickly became a favorite intellectual of Edwin Meese, then Reagan's attorney general. (Perhaps inspired by Epstein's arguments, Meese once announced at a Justice Department conference that a ''revolution'' in economic liberty was a possibility.) In 1986, Meese's office contacted Epstein and asked him to make a scholarly inquiry into Congress's power to regulate interstate commerce. The following year, Epstein published the results of his research in ''The Proper Scope of the Commerce Power'' (the article that Clarence Thomas would apparently later draw on in his Lopez opinion). Epstein argued that before the New Deal, Congress had the power to regulate only the channels of interstate commerce (railroads, for example) but not manufacturing, which doesn't qualify as commerce, or the trade of goods that don't cross state lines. The court, he maintained, was wrong, in its landmark 1942 ruling in Wickard v. Filburn, to allow the federal government to regulate the wheat production of a farmer who grew it for his own consumption. (The government had argued that private consumption was reducing demand for wheat that traveled across state lines.) Though he dutifully noted that his conclusion ''seems radical,'' Epstein called on the court to reverse its error by returning to the more limited pre-New Deal understanding of Congress's power to regulate the economy.

From the outset, Epstein's ideas ran into resistance from traditional judicial conservatives. In October 1984, Epstein clashed publicly with Antonin Scalia, his former colleague at the University of Chicago, in a panel discussion convened at the libertarian Cato Institute. Scalia, speaking first before a standing-room-only crowd, defended the view that judges should restrain themselves from overturning legislation in the name of rights or liberties not clearly and expressly enumerated in the Constitution. ''Every era raises its own peculiar threat to constitutional democracy,'' he said. ''The reversal of a half-century of judicial restraint in the economic realm'' -- Epstein's stated project -- ''comes within that category.'' As a traditional federalist, Scalia had his own qualms about the unconstitutionality of unlimited federal power, but he was not in favor of striking down laws in the name of ambiguous and contestable economic rights. Scalia argued that conservatives who had criticized earlier courts, like the Warren court, for liberal judicial activism now faced a ''moment of truth.'' They had to show the courage to reject conservative judicial activism as well.

When Epstein heard what Scalia had to say, he threw away his prepared remarks and delivered a spontaneous attack. Freely admitting that he was questioning the conservative ''conventional wisdom,'' Epstein insisted that judges should be much more aggressive in protecting economic liberty. ''There are many blatantly inappropriate statutes that cry out for a quick and easy kill,'' Epstein said, citing minimum-wage laws and other ''legislative regulation of the economy.'' He excoriated the Supreme Court for refusing to strike these laws down. ''One only has to read the opinions of the Supreme Court on economic liberties and property rights to realize that these opinions are intellectually incoherent,'' he concluded. ''Some movement in the direction of judicial activism is clearly indicated.''

V. Permanent Exile?

By 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress's power in Lopez, seemed to be answering the call. For conservative advocacy groups and public-interest law firms, the possibilities for litigation looked encouraging.

In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of ''the Constitution in Exile.'' He noted that for 60 years, proper constitutional limits on government power had been abandoned. ''The memory of these ancient exiles, banished for standing in opposition to unlimited government,'' he wrote with a hint of wistful grandiosity, ''is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty -- even if perhaps not in their own lifetimes.'' While not all the leaders of the movement immediately embraced Ginsburg's catch phrase (Edwin Meese says that the phrase Constitution in Exile suggests incorrectly that they have retired from the field of battle), among some legal conservatives it became a rallying cry.

The restoration did not occur. The Rehnquist court in recent years has proved more sympathetic to enforcing limits on Congress's power than any court since 1937: between 1995 and 2003, the court struck down 33 federal laws on constitutional grounds -- a higher annual rate than any other Supreme Court in history. But the so-called federalism revolution on the Rehnquist court did not deliver all of what the proponents of the Constitution in Exile had hoped. Every time a lower court appeared to be on the brink of successfully striking down a federal statute with substantial political support, like the Endangered Species Act, the Supreme Court wrote a hedging opinion reassuring the country that the justices intended to challenge Congressional power only at the margins.

''I think we failed,'' Michael Greve said flatly when I asked him about the past decade of Supreme Court litigation. ''There are encouraging signs that with the right strategic moves you can make some headway, until the court looks the principle in the eye and says, 'Oh, my God,' and pulls back.'' He rattled off a series of property-rights cases in which the Supreme Court had declared (in his mocking paraphrase), ''Oh, no, this would be too inconvenient, too constraining for government.''

During the current term, the Supreme Court has heard three cases involving questions of economic liberty that, according to Greve, represent the most significant tests in a decade of the power of the Constitution in Exile movement. Kelo v. New London, which was argued before the court in February, concerned Susette Kelo, a woman who sued the city of New London, Conn., after it used its power of eminent domain to seize 90 acres of property, including her house. The city planned to turn the parcel over to a private developer in order to increase the tax base and revitalize the city. Chip Mellor's organization, the Institute for Justice, represented Kelo, whom the institute's lawyers had sought out because she seemed like a sympathetic victim. Standing before the justices, Kelo's lawyer, Scott G. Bullock, asked the court to reject the claim that as long as the state could point to a plausible public purpose for the taking of private property (like increasing the tax base), it could appropriate people's homes. Justice Sandra Day O'Connor, however, seemed unimpressed by the suggestion that courts should second-guess the economic judgments of legislatures.

O'Connor and other justices seemed similarly skeptical during the second case, Lingle v. Chevron, U.S.A., which they heard later that same morning. Lingle involved a challenge to a rent-control regulation in Hawaii. Richard Epstein filed a brief for the Cato Institute that argued that the court should abandon its longstanding presumption that economic regulations are rational and ask instead whether the law, in fact, makes economic sense or is simply a ''naked wealth transfer.''

Randy Barnett, a libertarian scholar at the Boston University School of Law and the Cato Institute, was the plaintiff's lawyer in Ashcroft v. Raich, another key Supreme Court showdown, which was argued before the court last fall. Raich is a challenge to the federal government's attempt to enforce drug laws that conflict with the effort by California (and 10 other states) to allow the use of medical marijuana. Barnett represented Angela Raich, a woman who suffered from cancer that often confined her to a wheelchair but who said she felt much better after being prescribed medical marijuana. The author of a provocative book, ''Restoring the Lost Constitution,'' Barnett argues that courts should evaluate economic regulations with a ''presumption of liberty'' rather than with a presumption of deference. His book identifies a series of regulations that he says the courts should consider constitutionally suspect, from environmental laws to laws forbidding the mere possession of ordinary firearms, therapeutic drugs or pornography. ''The court has not really limited Congress's power very much,'' Barnett says. ''But the fact that it was willing to limit it at all has been an important principle. If it now basically throws in the towel, it will be pretty demoralizing to this whole side.''

In February, a day after the Kelo and Lingle cases were argued before the court, I phoned Epstein and asked him how he thought they had gone. ''I think the exile's going to be a little longer after yesterday,'' he said with a sigh. ''It's a very sad day to watch these guys work.'' Epstein expressed confidence that even if his side loses, the battle for the Constitution in Exile will continue at the state level -- ''the emotional grab of those eminent-domain cases is so strong,'' he said -- but confessed that he had little hope, for now, in the Supreme Court. ''They really have gone back to the extreme 1937 reaction that anything that concerns the economic well-being of this nation is simply a political matter,'' he said. ''If the Constitution is an annoying obstacle, they'll just get it out of their way.''

VI. Packing the Courts

If supporters of the Constitution in Exile lose all three cases now before the Supreme Court, what happens next? The general consensus, according to Greve, is that the movement should focus its energies on the appointment of sympathetic judges. ''I think the judicial appointments are what matters most of all,'' Greve says. ''And Bush's renomination of the rejected judges is a way of saying, Let's cram the same judges back in their face. That's intended as a sign that they mean business.''

Three candidates recently renominated by Bush for positions on the federal appellate courts are sympathetic to the ideas of the Constitution in Exile movement. In addition to William Pryor, the former attorney general of Alabama whom Greve praises, there is Janice Rogers Brown, a justice on the California Supreme Court and an outspoken economic libertarian. An African-American and a daughter of sharecroppers, Brown has been promoted by many libertarians as an ideal Supreme Court candidate. Known for her vigorous criticism of the post-New Deal regulatory state, Brown has called 1937, the year the Supreme Court began to uphold the New Deal, ''the triumph of our socialist revolution,'' adding in another speech that ''protection of property was a major casualty of the revolution of 1937.'' She has praised the court's invalidation of maximum-hour and minimum-wage laws in the Progressive era, and at her Senate confirmation hearing in 2003, she referred disparagingly to ''the dichotomy that eventually develops where economic liberty -- property -- is put on a different level than political liberties.''

From Greve's point of view, another sympathizer whom Bush has nominated for a federal appellate judgeship is William G. Myers III, who was the chief lawyer at the Department of the Interior and a lifelong advocate for mining and grazing interests. Democrats in the Senate have expressed special concern about Myers's narrow view of Congress's power to pass environmental regulations: he has criticized the ''fallacious belief that the centralized government can promote environmentalism'' and has denounced the Endangered Species Act and Clean Water Act as ''regulatory excesses.'' He also helped to found Cattlemen Advocating Through Litigation, a conservative group that challenges environmental regulations in court. On March 17, he was the first candidate approved by the Judiciary Committee, on a party line vote.

For Democrats in the Senate, a main cause of concern is not only the principles that these judges embrace but also the potential conflicts of interests that their loyalties can create. For example, Douglas Ginsburg, the judge who introduced the phrase Constitution in Exile, serves on the board of a group called the Foundation for Research on Economics and the Environment, or FREE, which favors free-market solutions to environmental problems. As Douglas Kendall of the Community Rights Counsel, an environmental watchdog group, has reported, between 1992 and 2001 Ginsburg took more than a dozen all-expenses-paid trips, mainly to Montana, under FREE's auspices, where he often participated in its judicial-education seminars. In 1999, a constitutional challenge to emission regulations in the Clean Air Act was accepted for argument before Ginsburg. The lawyer who was challenging the regulations on behalf of several industry groups, Edward Warren, had also served on the board of FREE. Ginsburg joined an opinion accepting Warren's argument that the emission regulations were unconstitutional. A dissenting opinion charged the majority with ignoring ''the last half century of Supreme Court jurisprudence,'' and the Supreme Court unanimously reversed the decision two years later in an acerbic opinion written by Scalia.

The battle over the ideologies and allegiances of appellate judges is, of course, something of a dress rehearsal for the Supreme Court nomination to come. Greve and his colleague Christopher DeMuth, the president of the American Enterprise Institute, say they are heartened by the judges reportedly on Bush's short list, many of whom they consider broadly sympathetic to their views. ''I think the president and his top staff have shown really good taste in their court of appeals nominations,'' DeMuth told me during a visit to the institute, ''and when the Supreme Court opening comes up, they will be very strongly inclined to nominate people from our side.''

DeMuth was especially enthusiastic about the possible candidacy of Michael W. McConnell, a federal appellate judge in Denver and a former University of Chicago law professor who worked with DeMuth at the Office of Management and Budget in the Reagan administration. Greve explained that McConnell not only has ''impeccable social conservative credentials'' but also will ''give you a vision of federalism that looks like the Constitution we once had, and he's intellectually powerful enough to pull it off on the court.'' Most of the other names on Bush's short list have similar qualities: J. Michael Luttig, a federal appellate judge in Virginia, is a vigorous proponent of the view that some federal environmental laws exceed Congress's powers to regulate interstate commerce; John Roberts, a federal judge in Washington, has also questioned whether some applications of the Endangered Species Act exceed Congress's regulatory powers.

The influence of the Constitution in Exile movement on judicial nominations is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.'' According to the former official, during Bush's first term, David S. Addington, the vice president's counsel, would often press the Justice Department to object that proposed laws and regulations exceeded the limits of Congress's power. ''People like Addington hate the federal government, hate Congress,'' the former official said. ''They're in a deregulatory mood,'' he added, and they believe that ''the second term is the time to really do this stuff.''

VII. America, Deregulated

f they win -- if, years from now, the Constitution is brought back from its decades of arguable exile -- and federal environmental laws are struck down, the movement's loyalists do not expect the levels of air and water pollution to rise catastrophically. They are confident that local regulations and private contracts between businesses and neighbors will determine the pollution levels that each region demands. Nor do they expect vulnerable workers to be exploited in sweatshops if labor unions are weakened: they anticipate that entrepreneurial workers in a mobile economy will bargain for the working conditions that their talents deserve. Historic districts, as they see it, will not be eviscerated if zoning laws are scaled back, but they do imagine there will be fewer brownstones and more McMansions. In exchange for these trade-offs, they insist, individual liberty -- the indispensable guarantee of self-fulfillment and happiness -- would flourish far more extensively than it does today.

Of course, there would be losers as well as winners in a deregulated market economy, and history provides plenty of reasons to be concerned about the possibility of abuse. Even the relatively modest deregulation of today's increasingly global and fluid U.S. economy may provide something of a cautionary tale. From Enron to illegal trading by mutual funds and bid-rigging in the insurance industry, corporate scandals are keeping consumer advocates like Eliot Spitzer quite busy. America, at the moment, is engaged in an important debate about the relative merits and dangers of the market economy, and the advocates of the Constitution in Exile are aware that they cannot achieve ultimate success without persuading a majority of the American people to embrace their vision.

But a political transformation in their favor remains, for the moment, remote, and they appear content, even eager, to turn to the courts to win the victories that are eluding them in the political arena. Advocates of the movement are entirely sincere in their belief that the regulatory state is unconstitutional as well as immoral and that a principled reading of the Constitution requires vigorous enforcement of fundamental limits on state power. Nevertheless, it is a troubling paradox that conservatives, who continue to denounce liberals for using courts to thwart the will of the people in cases involving abortion and gay marriage, now appear to be succumbing to precisely the same temptation. If the lessons of the past 60 years teach us anything, when judges try to short-circuit intensely contested democratic debates, from the New Deal cases to Roe v. Wade, they may provoke a fierce political backlash that sets back the movement they are trying to advance. In this sense, even if the Constitution in Exile movement manages to transform the courts before it has transformed the country, it may find that it has won less than it hoped.




Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is at work on a book about democracy and the courts, to be published next year.




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Keith Meyers/The New York Times
The shuttle Discovery is scheduled to lift off next month

NASA Is Said to Loosen Risk Standards for Shuttle
By JOHN SCHWARTZ

NASA officials have loosened the standards for what constitutes an acceptable risk of damage from the kind of debris that led to the disintegration of the shuttle Columbia as it was returning from space two years ago, internal documents show.

The move has set off a debate within the agency about whether the changes are a reasonable reassessment of the hazards of flight or whether they jettison long-established rules to justify getting back to space quickly.

Experts who have seen the documents say they do not suggest that the shuttle Discovery - scheduled to lift off from Cape Canaveral, Fla., on May 22 - is unsafe, but a small but forceful minority say they worry that NASA is repeating a practice that contributed to the Columbia disaster: playing down risks to continue sending humans into space.

The documents were given to The New York Times by several NASA employees, who asked not to be named, saying they feared retribution.

Documents that had been revealed earlier showed that NASA was struggling to meet safety goals set by the independent board that investigated the Columbia accident. The new documents suggest that the agency is looking for ways to justify returning to flight even if it cannot fully meet those recommendations.

The documents, by engineers and managers for the space agency, show at least three changes in the statistical methods used in assessing the risks of debris like ice and insulating foam striking the shuttle during the launching. Lesser standards must be used to support accepting the risks of flight, one presentation states, "because we cannot meet" the traditional standards.

Paul A. Czysz, emeritus professor of aerospace engineering at St. Louis University, who read the documents at The Times's request, said they did not demonstrate that the shuttle was too dangerous to return to space or that NASA was stinting on efforts to make it safer.

To achieve a profound safety improvement, he said, NASA would need to replace the shuttle fleet, which was designed in the 1970's, with an entirely new vehicle. But Professor Czysz, who spent some 30 years with McDonnell Douglas, a NASA contractor, compared the statistical shifts to moving the goal posts at a football game. "I was amazed at how they were adjusting every test to make it come out right," he said.

NASA officials say that the shuttle is safer than it has ever been because of changes made after the Columbia accident in February 2003, and they have long acknowledged that not all debris risk can be eliminated. "There is still going to be a possibility that a golden BB could get us," N. Wayne Hale Jr., the deputy director of the space shuttle program, told reporters in briefings this month.

Two years of testing since the loss of the Columbia and its crew of seven have shown that the shuttle's skin, designed primarily to resist the blistering heat of re-entry, is far more vulnerable to debris from the external fuel tank than had been thought.

The tank is filled before launching with 535,000 gallons of liquid hydrogen and liquid oxygen fuel, and insulating foam keeps the tank from icing over. From the beginning of the program, NASA rules said no foam or ice should hit the shuttle. The investigation board found that managers played down the risks over time as the craft survived thousands of blows from small pieces of debris.

After the accident, NASA officials initially expressed doubt that the 1.67-pound hunk of foam that struck the left wing could have brought it down. But tests have since proved that a 0.023-pound piece could cause catastrophic damage under the worst circumstances. NASA now says it has reduced the size of debris that will fall off of the tank to 0.01 pound or less, but admits that the only way to know is to monitor actual launching conditions.

One of the two internal documents, dated Feb. 17, 2005, was written by John Muratore, the manager of systems engineering and integration for the shuttle program, and a colleague. It describes ways to compensate for what it calls "overly conservative" assessments of the ability of the shuttle to withstand debris impacts, including these:

¶Moving from the traditional worst-case situation certification, or "worst-on-worst" approach, to "our best estimate of actual conditions."

¶Reducing safety ratios, which measure capability to withstand expected impact.

¶Relaxing standards - measured with mathematical models similar to a 6-sigma quality-control process widely used in industry - to allow a sharply increased rate of failure.

A second presentation was prepared last month. It provides extensive tables showing the expected failure rates of the carbon composite panels on the wings' leading edges, expressed as sigma values. Sigma represents the standard deviations from the mean; in practice, the higher the sigma number, the lower the probability of failure. A traditional 3-sigma failure rate is about 1 in 800, Mr. Muratore said, a 2-sigma is 1 in 40, and a 1-sigma is 1 in 2.

Several tables describing the impact tolerance of the nose cone and panels show no tolerance for ice impact from several sources under a worst-on-worst environment. In many cases, even the best-estimate environment does not meet the impact tolerance goals without dropping from 3-sigma to 2-sigma or below, and in some cases show "no capability" of surviving impact. Several of the charts state that "orbiter certification impact threshold does not meet N.S.T.S. requirements," meaning that the designation did not meet the National Space Transportation System's safety requirements.

Mr. Muratore argues that a 2-sigma standard is "not unprecedented" - that it was used to approve the risks associated with aborting missions after an engine had failed. In an interview, he said the process was not intended to move the goal posts.

"In my entire 25-year career I've never jiggled a number," Mr. Muratore said. The traditional standards of airplane quality certification are unrealistic for the shuttle, he said.

The engineering challenge is enormously complex, he said. "If you plan for the absolute worst-on-worst case, it can fake you out into thinking you can't do anything," he said.

Even after two years of research, he said, "we're just beginning to get our arms around some of these kinds of numbers."

Moving from a 3-sigma to 2-sigma "is pretty reasonable," he said, if analysis can show the likelihood of debris of the right size striking that vulnerable spot with the precise amount of force to cause severe damage is only 1 in 1000 or 1 in 10,000. He said there had been "a lot of healthy debate."

NASA is completing its analysis of 177 possible debris sources and is about to present the data to the task force evaluating whether the shuttle Discovery is safe enough to lift off as scheduled during the two-weeks beginning May 22. That group - named for Thomas P. Stafford and Richard O. Covey, the two former astronauts who are leading it - postponed its final public meeting late last month and told NASA that it needed more information, including further details about the shuttle's ability to withstand impact from debris.

When asked whether the task force had seen the documents obtained by The Times, David Drachlis, a spokesman, said that it had not but that "essentially, all of the information you described has been presented to the task group."

NASA went back to perform additional debris reviews before making a final presentation to the Stafford-Covey group, which will then present a report to Dr. Michael D. Griffin, the agency's new administrator.

Dr. Griffin has said that NASA may return to flight without having fulfilled all the accident board's recommendations. "Accident boards make recommendations that seem good to them at the time but which may not in all cases be capable of implementation," he said last week at his Senate confirmation hearing.

The notion that NASA is declaring its evaluation tools "overly conservative" has parallels to the Columbia disaster, when NASA turned to Boeing engineers for analysis. They used a computer program called Crater, which predicted potentially severe damage, but the engineers played down the results on the ground that Crater was a "conservative" tool, and mission managers squelched further efforts to look for damage. NASA officials have said the agency now knows more about the problems of foam and ice, and has taken steps to reduce risk.

Even though it would be virtually impossible to determine the risk of a serious foam strike in time to abort a future shuttle mission, NASA is developing methods of repairing the shuttle's skin in orbit and has developed a risky "safe-haven" plan that would allow astronatus in a damaged shuttle to remain at the International Space Station for up to 45 days until a rescue mission could be attempted.

A NASA employee who provided the documents said optimism based on past success is unwarranted, and compared it to saying, "We've run the red light again and again, and we've gotten away with it."

"They haven't gotten away with it," he continued. "They've destroyed two orbiters - 14 people are dead."

James Wetherbee, a former shuttle commander and safety official who recently retired from NASA, said he had attended briefings that discussed lowering the risk standards a year ago. He expressed concern about NASA's tendency to oversimplify complex calculations and then for management to put the best face on the result. Mr. Muratore's analysis, he said, is honest - if not, it would not show so many areas of the shuttle failing traditional tests - but "the numbers came out worse than we thought they would."

He said the shuttle should fly the limited number of missions to complete the space station, but only after NASA fully explained the risk to the American people - "and I think people would agree." He said work must continue to make the shuttle safer. "You can't simply accept lower standards and decide to go fly," he said. "You must do something else to earn the privilege," with further redesign to fix the debris problem and to toughen the leading edges.

But that it is not likely, he said.

"You know what's going to happen? They'll have no problem on this flight or the next flight," he said, and the issue "won't be on the front burner any more. We'll forget about it."



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