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CNN NEWSNIGHT AARON BROWN

380 Tons of Explosives Disappear From Iraq; Bush, Kerry Campaign in Swing States

Aired October 25, 2004 - 22:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


WOLF BLITZER, CNN ANCHOR: Good evening to our viewers in the United States and around the world. I'm Wolf Blitzer in New York. Aaron Brown will be back tomorrow night.
We've all been waiting for some sort of October surprise to shake things up in this presidential election. We did get a couple of surprises today. Thanks to "The New York Times" we learned that 380 tons of sophisticated explosives have disappeared in Iraq and are feared to be in the hands of insurgents or terrorists or bad guys whatever we call them.

A second surprise word that the Chief Justice of the United States William Rehnquist has cancer of the thyroid and underwent surgery over the weekend. Our thoughts are with him and we wish him a speedy recovery.

The surprise will focus attention of many voters on this fact. The next president of the United States, whether George Bush or John Kerry, will shape all of our lives for a generation or two by nominating two or three, maybe even four, Supreme Court justices. I suspect there could be yet more surprises in the coming days.

But we'll begin with Iraq and CNN's Jamie McIntyre. He's over at the Pentagon, Jamie a headline please.

JAMIE MCINTYRE, CNN SR. PENTAGON CORRESPONDENT: Well, Wolf, the Pentagon is disputing any notion that this 380 tons of high explosives were allowed to be looted by the U.S. military even as it can't explain what happened to the explosives nor can it deny that it might have ended up in the hands of the insurgents.

BLITZER: All right, Jamie, we'll get back to you.

On to the campaign trail now two stops, as always, and from here on out, first CNN's Candy Crowley traveling with Senator Kerry and company, Candy, a headline.

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: Wolf, the crowd was huge and clearly glad to see him. They were very receptive and he gave a classic speech. Oh, and John Kerry was there too -- Wolf.

BLITZER: Next to CNN's John King. He's in Iowa with the president, John, a headline from you.

JOHN KING, CNN SR. WHITE HOUSE CORRESPONDENT: Wolf, election day is Tuesday, November 2nd, but listen to the president make his closing appeal to the voters and it is clear he wants them when they enter the polls to be thinking of September 11th -- Wolf.

BLITZER: All right, John, we'll get back to you as well.

Finally, a little perspective on a lot of news for that we turn to CNN's Jeff Greenfield, Jeff, a headline.

JEFF GREENFIELD, CNN SR. ANALYST: Wolf, in an election this close any piece of news, a Supreme Court chief justice in the hospital, a recently hospitalized former president on the campaign trail, more trouble inside of Iraq raises the same question could this be the event that tips the presidency one way or the other -- Wolf?

BLITZER: All right, Jeff, thank you very much, more with you in just a few moments.

Also on the program tonight a shortage, yes, a shortage of poll workers and a record turnout expected. Could this be an election hurdle?

Also, the flu vaccine shortage and the long wait for a flu shot. Could all of this have really been prevented, all that, much more in the hour ahead?

But we begin tonight with those missing explosives, 380 tons of it, three-quarters of a million pounds, as much as a fully loaded 747, and enough to take down every airliner on the planet or take out every Humvee in Iraq.

How it vanished and who took it are two questions tonight. Others include when did the Bush administration know about it and who's to blame? The last two already being raised on the campaign trail that in a moment.

First though CNN's Jamie McIntyre.

(BEGIN VIDEOTAPE)

MCINTYRE (voice-over): As part of the pre-war sanctions, the International Atomic Energy Agency placed under seal some 380 tons of high explosives stored in bunkers at the massive al Qa Qaa facility south of Baghdad explosives that could be used to trigger nuclear weapons but also could be used for deadly conventional attacks.

Two weeks ago, October 10th, Iraq's Ministry of Science and Technology reported to the IAEA the explosives were "lost" and blamed theft and looting of government installations due to lack of security after April 9, 2003, the day Saddam Hussein's regime was toppled.

The Pentagon says the Al-Qa Qaa facility was a level two priority on a list of 500 sites to be searched and secured. U.S. officials say it was visited dozens of times by U.S. troops in the months following the invasion and after searching 32 bunkers and 87 other buildings they never came upon the stockpile. ADAM ERELI, STATE DEPT. DEPUTY SPOKESMAN: We did not find any explosives under seal. We did find some explosives that were consolidated.

MCINTYRE: IAEA inspectors last checked the explosives in January of 2003, three months before the start of the war but the agency admits it has no way to know if the explosives were moved before the invasion or looted afterward.

UNIDENTIFIED FEMALE: The most immediate concern given the security climate in Iraq is that these explosives, and this is a real massive quantity of explosives, could have reached the hands of insurgents.

MCINTYRE: Iraq is awash in weapons and munitions from the old regime but the missing explosives, known as HMX and RDX, are more portable and powerful. Less than a pound is believed to have brought down Pam Am Flight 103 over Lockerbie, Scotland in 1988.

Democratic presidential candidate John Kerry seized on the report to argue the Bush administration blundered badly in not sending enough troops to Iraq to secure weapons and stop looters.

SEN. JOHN KERRY (D), PRESIDENTIAL CANDIDATE: Secretary Rumsfeld we know cavalierly dismissed the danger of looting and now we know the impact.

(END VIDEOTAPE)

MCINTYRE: The U.S. says it was only notified of the loss of the explosives ten days ago and it's ordered the Iraqi survey group, which spearheaded the hunt for weapons of mass destruction, to provide a comprehensive response to what happened but what's not clear, Wolf, is whether the Pentagon wouldn't have already known that the munitions were missing, the explosives were missing since they would have been well aware of the IAEA inventory well before they arrived at the site back in April of 2003 -- Wolf.

BLITZER: Jamie, do they have even a working assumption of what might have happened here where these explosives might be?

MCINTYRE: Well, they don't have a good explanation. They say they visited the site dozens of times. They never found anything under seal. They found other explosives. So, the Pentagon is floating the idea that perhaps these were moved well before the U.S. forces got there and they indicate that they got there pretty soon after Saddam Hussein's regime was toppled on April 9th. It looks like the first forces might have gotten there the next day, April 10th.

BLITZER: Jamie McIntyre at the Pentagon, thank you Jamie.

And, as we said just a moment ago, it didn't take long for this issue to make it onto the stump. It was not, however, the only headliner, so two reports tonight from the Bush and Kerry campaigns starting with that other headliner and CNN's Candy Crowley.

(BEGIN VIDEOTAPE)

CROWLEY (voice-over): Showtime in Love Park, Philadelphia.

BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: If this isn't good for my heart, I don't know what is.

CROWLEY: He is the Democrat's power player and not much can muscle Bill Clinton out of the headlines but 380 tons of explosives missing in Iraq is a lot.

KERRY: This is one of the great additional blunders of Iraq the unbelievable incompetence of this administration.

CROWLEY: The day's message came straight out of the day's news but the picture was straight from the heart of the Democratic Party. Seven weeks after major bypass surgery, he looked a little thinner, sounded a little weak, but Bill Clinton still talks the talk better than anyone.

CLINTON: If one candidate is trying to scare you and the other one is trying to get you to think, if one candidate is appealing to your fears and the other one is appealing to your hopes, you better vote for the person who wants you to think and hope.

CROWLEY: Politicians appear alongside Bill Clinton at their own risk. He can make anyone look dull. John Kerry is no Bill Clinton but he is revving it up in the home stretch with a rip on the president's debate performance.

KERRY: The president kept responding, "It's hard work. It's hard work. It's hard work." Well, my fellow Americans I am ready and I would be privileged and I am impatient to relieve this president of that hard work.

CROWLEY: Though both the former president and the want to be president publicly dismissed the idea that Clinton can pull votes for Kerry, Kerry strategists privately think Clinton can help seal the deal.

(on camera): Clinton's favorables are higher than either the president's or the Senator's and he's even more popular among swing voters and African American voters, two key blocks for a Kerry victory.

Candy Crowley CNN, Warren, Michigan.

(END VIDEOTAPE)

(BEGIN VIDEOTAPE)

KING (voice-over): In Colorado to open the final week, terrorism and leadership the issues the president wants voters to consider most in the end.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Even when you might not agree with me you know what I believe, where I stand and what I intend to do.

KING: This headline hardly fit with Mr. Bush's message of strong wartime stewardship, 380 tons of missing explosives in Iraq, more evidence to the Kerry campaign of inept administration planning.

The White House played down the episode and turned its fire on Senator Kerry, twisting one of the Democrat's favorite lines. The president says a Kerry administration would be too weak and would react to terrorism instead of hunting the terrorists.

BUSH: My opponent has the wrong strategy for the wrong country at the wrong time.

KING: In accusing Mr. Bush of mismanaging the war on terror, Senator Kerry says, among other things, that the United States let Osama bin Laden escape after cornering him in Afghanistan. As he campaigned in Colorado and later in Iowa, Mr. Bush called it another flip-flop, quoting Senator Kerry from three years ago.

BUSH: "I think we've been smart. I think the administration leadership has done it well and we are on the right track." Well, all I can say is that I'm George W. Bush and I approve of that message.

KING: Word Chief Justice William Rehnquist is hospitalized for cancer treatment added a new element to the campaign's final days. Mr. Bush made no mention of Rehnquist but judges are a campaign flashpoint and this speech line, after voicing opposition to abortion and gay marriage, is a conservative favorite.

BUSH: And I will tell the people that I'll name federal judges who know the difference between personal opinion and the strict interpretation of the law.

KING (on camera): The president was told of Rehnquist's hospitalization Monday morning and the White House says he wishes the chief justice a speedy recovery. As for the potential political impact, some Republicans believe the news will increase intensity among social conservatives who, as one leading Republican strategist put it, view the Supreme Court as the Holy Grail of American government and politics.

John King CNN, Davenport, Iowa.

(END VIDEOTAPE)

BLITZER: More now on the Supreme Court story, the Chief Justice Rehnquist being treated for thyroid cancer. He underwent a tracheotomy on Saturday, a procedure to open the windpipe and make breathing easier. It could be a sign of more problems to come. It also begins a story with political as well as medical implications.

Here's CNN's Kelli Arena.

(BEGIN VIDEOTAPE)

KELLI ARENA, CNN JUSTICE CORRESPONDENT (voice-over): The disclosure that the chief justice has thyroid cancer and underwent a tracheotomy over the weekend shocked even some of the most ardent Supreme Court watchers.

BRAD BERENSON, FORMER SUPREME COURT CLERK: Everybody's been aware really for years that there could be a Supreme Court vacancy but this is a very, very visible reminder of it in the homestretch of a presidential campaign.

ARENA: His doctors aren't talking and the court said little but projected an air of normalcy. In a statement it said he is "expected to be on the bench when the court reconvenes" next Monday.

CHIEF WILLIAM REHNQUIST, U.S. SUPREME COURT: Nothing is so dear and precious as time.

ARENA: Several senior government sources tell CNN the situation is far more serious than the public statement reveals but say it's unlikely the court will elaborate, especially with one week to go before the election.

EDWARD LAZARUS, AUTHOR, "CLOSED CHAMBER": They don't like the idea of the Supreme Court being a sort of political football that the candidates trot out at their convenience. They want to be seen above politics.

ARENA: Rehnquist is described as both proud and stubborn.

REHNQUIST: Don't get in my way.

ARENA: At 80, he's the second oldest serving chief justice, a post he's held for 18 years. He joined the bench in 1972 and has led an increasingly conservative court.

BERENSON: The court has steadily but slowly moved more in his direction. He's come to be regarded as really a terrific chief justice, someone who has held the court together and affected its overall direction over quite a long period of time.

ARENA: The public knows him best from the impeachment trial of President Clinton.

REHNQUIST: The said William Jefferson Clinton being and hereby is acquitted of the charges in the said articles.

ARENA: He also presided over the Bush v. Gore case four years ago.

REHNQUIST: We'll hear argument now in No. 00949 George W. Bush and Richard Cheney v. Albert Gore.

ARENA (on camera): In 2000, the Supreme Court sided with Bush in a 5-4 decision. If this election ends up in the high court as well and Rehnquist is unable to participate, that could leave the justices split 4-4.

Kelli Arena, CNN, Washington. (END VIDEOTAPE)

BLITZER: And, as Kelli just said, news of Chief Justice Rehnquist's cancer arrives just eight days out from the presidential election. It touches on an area that voters generally pay little attention to compared to the economy or national security or health care. Just the same, anything so close to the election involving the body of government that literally decided the last election is a potential wildcard.

So for some insight we turn, as we always do, to our Senior Analyst Jeff Greenfield. Coming only eight days before is this going to focus attention on the Supreme Court as an issue that could affect all Americans down the road and people who will make up their minds, those undecided?

GREENFIELD: Well, it should because there is no power that a president has that is greater or more long lasting than the power to appoint a lifetime Supreme Court justice. Richard Nixon and Gerald Ford are still exercising influence on the federal government because each of them has an appointee that's still on the bench.

I'm skeptical because the issues that people link to the Supreme Court, hot button issues like abortion or school prayer or the rights of criminal suspects or more recently the rights of enemy combatants, people who have strong feelings on those issues know how they're going to vote anyway.

Whether it's going to alert some people, say "Hey, you know, this is not some abstract fancy pants law stuff, this is real, we might have a pick right away," I'm a little skeptical but, as I say, this is -- this should be a voting issue. It tends not to be.

BLITZER: What about Bill Clinton making a comeback, if you will, on this day and he's about to do a lot more aggressive campaigning for John Kerry?

GREENFIELD: I was thinking about four years ago when Bill Clinton sat in the Oval Office waiting for the call that didn't really come from Al Gore. Back then there was a complicated reason.

The Gore people knew that he could fire up the base but they told me when I asked what was up that every time Clinton got headlines, Gore's numbers went down because the voters in the middle who strongly disapproved of Clinton's misbehavior took it out on Gore.

Four years have passed. It seems to me that in an election that seems this close to have the most popular Democratic figure in decades out on the campaign trail could conceivably make just enough difference.

I know there are people close to Clinton who still think he should be -- he should have gone to Arkansas first because they think they have a chance to steal that state and a homecoming from the former president just might do the trick. He'll be down there later this week. BLITZER: I'll be skeptical but we'll see. Anything can happen. Bill Clinton has a power over a lot of people, not only in Arkansas but a lot of other places as well.

What do you make of this story, 380 tons of explosives missing in action?

GREENFIELD: For months a lot of people have said this election is going to be determined by outside events and they usually had in mind something really dramatic, Osama bin Laden's capture or a terrorist attack, a scandal.

But if Kerry pulls this election out, I think the steady drip, drip, drip of almost unbelievably bad news out of Iraq and Bush's defenders will say that's the way the media played it I think is going to be the big reason because you remember it was when Kerry focused attention on Iraq that his bleeding in the polls began to stop.

It was that first foreign policy debate where he hammered on Iraq that brought Kerry back into near parity and I think this is the kind of story that people say George W. Bush tells us he's the effective fighter in the war on terror. He says Iraq is part of that war but the competence issue now becomes right on page one literally again and that's Kerry's hole card in this last week I think.

BLITZER: Jeff Greenfield is going to be a very busy guy over the next several days. Thanks very much.

GREENFIELD: Yes, I hear there's an election coming up. I don't know.

BLITZER: I heard about that. Thank you very much.

Just ahead on NEWSNIGHT, the long, long wait in line in the scramble for a flu shot. Has the Bush administration dropped the ball?

And a business story that comes in grape, orange and lemon flavor.

From New York this is NEWSNIGHT.

(COMMERCIAL BREAK)

BLITZER: More now on those missing explosives in Iraq. With us is David Albright, a former U.N. weapons inspector. Currently he's president of the Institute for Science and International Security in Washington, D.C. David thanks very much for joining us.

It sounds pretty awful, 380 tons of sophisticated conventional explosives missing. What do you make of it?

DAVID ALBRIGHT, FORMER U.N. WEAPONS INSPECTOR: Well, one it is a lot. I mean you gave some figures at the top of your show. I can just add another one if you consider the USS Cole bombing. I mean there's enough of this high explosive to do over 1,200 of those bombings similar to the Cole and so it is a lot.

And when I listen to the latest statements from the Pentagon that you reported that somehow this high explosive disappeared before the Marines got there, I'm just as troubled.

I mean it says they didn't even notice it was gone and it would imply that since it went missing before they got there that Saddam Hussein may have planned to disperse this high explosive to insurgent groups. And so it may all be in the hands of insurgents, which is even a worse picture than I would have anticipated.

BLITZER: NBC News is reporting and the Bush campaign is quoting NBC News as saying one of their embedded reporters arrived there on April 10th of last year and even then they said there was no sign of these explosives at this facility. So, I guess theoretically it's possible that either it had been dispersed or removed or transported even earlier.

ALBRIGHT: That's right. I would want to check it out. I mean it's a big site. These bunkers are big and it could get lost in that complex and it may be that they just didn't go to the right places and didn't see it.

And so, I think that the issue has to be investigated thoroughly but I do think that however the administration explains this they're not looking very good and the net result is they have to worry a great deal that the result of this is that American soldiers have been dying because they didn't protect this material sufficiently or find it.

BLITZER: You were familiar -- you're familiar with this facility because the International Atomic Energy Agency, weapons inspectors had been going there throughout much of the '90s.

ALBRIGHT: That's right. It was well know and, in fact, I can remember talking to people after the fall of Baghdad about these explosives, particularly the HMX that was there that had been identified by the inspectors as something to monitor because it could be used in nuclear weapons.

Now the RDX can also be used in nuclear weapons and for the first designs Iraq was looking at prior to '91 it planned to use the RDX but also RDX is in many places in Iraq and it's a much more common military explosive for the Iraqi military.

So, the focus was principally on the HMX but it was well known to be there. It had been inventoried. In fact, the inspectors before the war this time were trying to figure out what happened to about 30 tons of it that had been used by the Iraqis between '98 and 2002.

And so it was in the minds of the inspectors. Those concerns were expressed to governments, including the U.S., and the result that came back was, "Don't worry about it. I mean we've got it under control."

And so, even though there was a sense that they had gotten the message that it was there we're now learning they didn't really get that message that it was there and whatever story they give they didn't understand that it was important to figure out where that high explosive was located.

BLITZER: All right, David Albright thanks very much for joining us.

ALBRIGHT: Thank you.

BLITZER: And coming up on this program staying on message, the two vice presidential candidates speak out on Iraq.

And later, we'll be watching the voters come Election Day. Will there be enough people to keep things honest?

Around the world this is NEWSNIGHT.

(COMMERCIAL BREAK)

BLITZER: And our deepest condolences to the families of these brave young men.

In Washington, staying on message is a virtue, sometimes even more so than facing inconvenient facts. Where to draw the line between the two can make a big difference in a political campaign, especially a very close one. For now, on Iraq, the administration has one message, one that it's sticking to and the Kerry campaign has another.

(BEGIN VIDEO CLIP)

DICK CHENEY, VICE PRESIDENT OF THE UNITED STATES: I think it's been a remarkable success story to date when you look at what's been accomplished overall. I think the president deserves great credit for it. The other credit, most of the credit, a good part of the credit needs to go specifically as well to the men and women of the United States armed forces. They've done a superb job.

SEN. JOHN EDWARDS (D), VICE PRESIDENTIAL CANDIDATE: I mean this is just a continuation of the failures that we've seen in Iraq from George Bush and Dick Cheney and our military has done everything they've been asked to do. Our men and women in uniform have been extraordinary. They've been heroic but we have a mess in Iraq and we have a mess in Iraq because George Bush and Dick Cheney didn't plan.

(END VIDEO CLIP)

BLITZER: Senator Edwards appeared on "LARRY KING LIVE" earlier tonight here on CNN.

After the electoral mess four years ago, it's only a slight exaggeration to say that lawyers might just outnumber voters next Tuesday, no shortage there but what about the people trained to make sure the lawyers have nothing to argue about in the first place?

CNN's Dan Lothian has that story.

(BEGIN VIDEOTAPE)

DAN LOTHIAN, CNN BOSTON BUREAU CHIEF (voice-over): The help wanted sign for trained poll workers is hanging across America.

UNIDENTIFIED MALE: Except in a few scant places we have more need for poll workers than we have poll workers.

LOTHIAN: Several hundred thousand fewer people on hand than the two million desired. Election watchers say the shortage is rooted in apathy and an aging pool of poll workers.

DOUG CHAPIN, DIRECTOR, ELECTIONLINE.ORG: I've seen studies that say that the average age of the American poll worker is early 70s. Given that you already are facing a declining population of available poll workers.

LOTHIAN: With questions about provisional ballots, concerns over new electronic voting machines, new identification requirements...

(on camera): ...and a tight race which many experts predict will result in a record turnout, federal officials say a shortage could be the number one election hurdle this year. The concern boils down to this, insufficient quality help to handle long lines, prevent confusion or avoid any mistakes.

UNIDENTIFIED MALE: Our system of democracy can't exist unless we have volunteers who will work at the polls.

LOTHIAN (voice-over): The Election Assistance Commission is going back to school to find a new generation of recruits, hitting college campuses hard with the help of a grant of more than $600,000.

And in key battleground states, like Pennsylvania, where every vote will be magnified and where some poll workers are feeling the pressure...

UNIDENTIFIED FEMALE: You want it to be right, no mistakes.

LOTHIAN: ...an aggressive effort is underway...

UNIDENTIFIED FEMALE: Make sure that they are available.

LOTHIAN: ...to ensure poll workers are ready.

JANE ERVIN, LEHIGH COUNTY EXECUTIVE: Getting trained on some of the new rules and regulations that are in place for this election.

LOTHIAN: This class is in Allentown.

UNIDENTIFIED MALE: If they're not in that book, then we just don't need to really call you to see if they're registered, correct?

UNIDENTIFIED FEMALE: That's correct.

LOTHIAN: The federal government says it has never been as involved as it is now in helping local and state officials staff the polls with well-trained workers.

Dan Lothian, CNN, Boston.

(END VIDEOTAPE)

BLITZER: Dick Polman joins us now in part to talk about star power in this election, Arnold and Rudy for president -- for the president, that is -- Bill Clinton for Senator Kerry. A lot more to talk about as well, so we'll try to cover as much ground as we can in the time that we have. Mr. Polman writes for "The Inquirer" in Philadelphia. He is joining us from there tonight.

Thanks very much for joining us.

First of all, Bill Clinton was in Philadelphia today stumping for John Kerry. How did he do? And will he have an impact in your state?

DICK POLMAN, "THE PHILADELPHIA INQUIRER": Well, he's very popular here.

He did well. He was -- he didn't speak very long. He was basically just introducing Senator Kerry. Whether he'll have an effect here, I don't -- it's a twofer to have him. One, he's a very popular with African-Americans, who are the core electorate in Philadelphia and Democrats cannot win Pennsylvania unless they have a huge turnout in Philadelphia and particularly among African-Americans. He's been very popular there of course since they were being defenders of his during the Lewinsky scandal.

Also, there were tens of thousands of people watching this rally today. Clinton is still extremely popular. A lot of these workers who showed up are suburbanites from the surround surrounding Philadelphia, where Clinton basically won those counties which were formerly or known historically as Republican counties. So, in that sense, he can help Senator Kerry. But, on the other hand, Senator Kerry needs Pennsylvania. It's hard to see how he would win this election unless he gets Pennsylvania, because he's vulnerable in some of the states that Al Gore won elsewhere in 2000.

BLITZER: Well, you know a great deal about Pennsylvania. Let's talk about that for a second. How does it look right now?

POLMAN: Well, I'd say, since the first debate in Miami on September 30, Senator Kerry has built sort of methodically a very small, steady, incremental lead to the point where he's probably up -- this is a guess, but basically the consensus of the polls, including a new one out today, shows him up maybe by three points, four points.

But it seems to be getting -- it has a certain amount of ballast to it, I think, and you can see some of the -- the internal numbers seeming to show that the economy, in particular, is an extremely important issue here. We've lost a few hundred thousand manufacturing jobs. George W. Bush is up 20 points on, you know, who do you trust more on the war on terrorism, 20 points. And yet, he's trailing in the polls. So why would that be? It's because of things like the economy, kitchen-table issues, health care, prescription drugs. This is a state with a disproportionate number of seniors, one of the greatest in the nation. And they vote heavily.

BLITZER: Dick Polman of "The Philadelphia Inquirer" spending a few moments with us, thanks very much.

POLMAN: Sure. Appreciate it.

BLITZER: Thank you.

And still to come on this program, the case of a reporter facing jail time for contempt for a story she's never even written. Aaron Brown talks with Judith Miller of "The New York Times." That's coming up.

And later, fixing what ails the way we get or don't get when it comes to flu shots. Is the system too far gone to save?

From New York, this is NEWSNIGHT.

(COMMERCIAL BREAK)

BLITZER: Welcome back to NEWSNIGHT.

Presidential races have a way of eclipsing other stories. We take a minute tonight to update one of them. Earlier this month, a federal judge held veteran "New York Times" reporter Judith Miller in contempt for refusing to name a source. The source is at the center of a federal investigation into who leaked the name of an undercover CIA officer last year to columnist and CNN "CROSSFIRE" co-host Robert Novak.

Ms. Miller is not the only reporter to be caught up in the investigation. But what sets her case apart is that, after talking to her source, she never wrote a story. And yet, she faces up to 18 months in jail. She's appealing the sentence and spoke to Aaron Brown about her legal fight.

(BEGIN VIDEOTAPE)

AARON BROWN, CNN ANCHOR: Well, you're a friend, so the good news is, you're not in jail.

(LAUGHTER)

JUDITH MILLER, SENIOR INVESTIGATIVE REPORTER, "THE NEW YORK TIMES": That's the good news.

BROWN: But for how long I guess is the question. You don't really know, do you?

MILLER: No, I don't, because we don't know how long the appellate court is going to take to consider my case and Matt Cooper's case, which have now been joined in one large appeal. BROWN: Matt works for "TIME."

MILLER: He does.

BROWN: And, basically, just for people who have not sort of followed every chapter of this, a federal district court judge is holding you in contempt, holding Matt in contempt for not revealing a source, in your case, about a story you never wrote.

MILLER: Right.

BROWN: Which makes it, I suppose, a bit odder and a bit for those of us on this side of the universe, the reporting side of the universe, a little bit more disturbing.

MILLER: Yes, I think a little Orwellian is the word that comes to mind.

BROWN: They want you to give up a source. And you obviously don't want to give it up. When you talk to lawyers, do they tell you that the law is clear or the law is ambiguous or there's no law at all; we just have to hope for the best? What do they tell you?

MILLER: Well, there's a 1972 Supreme Court decision about whether or not journalists have a certain kind of privilege, the right not to testify before grand juries in certain circumstances.

But I think what "The Times" is arguing and what my lawyers firmly believe is correct is that a lot has happened since that ruling. For example, 31 states and the District of Columbia have passed shield laws for journalists that provides the kind of protection that we think we have under the First Amendment. And it's only at the federal level -- and this is a federal issue -- that that kind of protection has not yet been established, which is why the publisher of my newspaper has called for a federal shield law to make this issue clear.

We're very hopeful that the appellate court will side with us. We think that the law is on our side. I'm not a lawyer, but I hope they're right.

BROWN: Have you thought about that you might actually have to go to jail?

MILLER: Oh, I've thought about it a lot, Aaron. And my family has thought about it a lot.

And, you know, last year, I spent five months in Iraq away from them. And I don't look forward to a prolonged separation from the -- my job and the people I love. But this, for me, is pretty straightforward. This is really a no-brainer.

BROWN: Let me get to that in a second. Let me just ask one more thing before.

There have been a number of people. Mr. Fitzgerald has, I think, aggressively, try to do his work. Some people have, it seems, have made agreements either with the sources or with Mr. Fitzgerald. Is there any room here to negotiate that you see?

MILLER: Well, I can't talk about what other journalists have done. And I don't want to start dividing journalists, putting myself in a different category. I can just tell you what I decided and why.

I felt that I didn't want to start to go down the road of testifying about someone who may or may not be a source, because, at this point, the focus of Mr. Fitzgerald's inquiry has been on one person. But, as we've seen from Matt Cooper, if you make a deal to discuss that one person who may or may not have given a voluntary waiver, what about what happens when Mr. Fitzgerald's target of interest or person of interest shifts?

And then there's another person and another person who comes under suspicion. And, eventually, somebody might actually get to one of your sources, if they haven't already. I just decided that the position has got to be, if I promised someone confidentiality, whether or not he was a source on a particular story, I'm not going to go in and testify about what that person told me. Otherwise, I can't do my job.

People won't come to you and me and say, will you protect me if we give you information if they think we're going to fold and give them up. Our job depends really on this confidentiality.

BROWN: Take us out of the theoretical, OK? Does it make any difference in the way you see this that someone may have, in fact, for political purposes, broken the law?

MILLER: Well, I think that's one of the issues that the special prosecutor is examining. People who automatically assume that whoever divulged Mrs. Wilson's name did so for -- to put her in jeopardy, that's an assumption on their part. We don't know that.

And I think, Aaron, one of the most difficult aspects of this case is that the special prosecutor is under an obligation to exhaust every other avenue of inquiry before he starts subpoenaing journalists to come and testify. Now, he has submitted some information to the court about what he has done prior to coming to us. But that information is secret.

My lawyer can't see it. So, we can't even defend ourselves, in a sense, because so much of this case is secret. So, I'm going to go to jail for a story I never wrote and the prosecutor's case that, in part, is secret. It's a very difficult position that I think I find myself in and that the paper finds ourselves in.

BROWN: I would say it's impossibly difficult.

It's good to see you. In one way or another, these are, in fact, really serious issues.

MILLER: Right. BROWN: And it may be that this is the imperfect case to -- I don't mean on your part -- but for people generally, an imperfect case for people to understand the significance and the importance of the issues.

But we would ask, I think, all of us who do this work, that people at least consider the arguments.

Good to see you.

MILLER: Thank you. Nice to see you, Aaron.

BROWN: Thank you.

(END VIDEOTAPE)

BLITZER: And this additional note. A string of similar cases is making its way through the courts. Last summer, five reporters were held in contempt in a civil case brought against the government by Wen Ho Lee. He's the former Los Alamos scientist who was accused of spying. The reporters were fined. And like Ms. Miller, they're appealing their cases right now.

More to come tonight, including a look at what's ailing the system that's supposed to ensure everyone who needs a flu shot gets a flu shot. Should the government step in?

And, later, a system that works at a company "On the Rise." It's built on tiny bubbles, very tiny bubbles.

A break first. This is NEWSNIGHT.

(COMMERCIAL BREAK)

BLITZER: By now, the immediate cause of the flu vaccine shortage is familiar, problems in a manufacturing plant in England that left the United States some 48 million doses short.

Today, the governor of Illinois asked the FDA for permission to import at least 30,000 doses of vaccine from Europe to help nursing home residents in his state. If the FDA says yes, and that's a big if, that would certainly be a major shift in policy. While Illinois waits for an answer, the FDA is facing many questions.

Here's CNN's Elizabeth Cohen.

(BEGIN VIDEOTAPE)

ELIZABETH COHEN, CNN MEDICAL CORRESPONDENT (voice-over): Many people saw these signs coming. The question is, was anyone listening? For years, experts have been saying:

DR. JERRY AVORN, AUTHOR, "POWERFUL MEDICINES": The FDA should have known that this was coming.

COHEN: In 2001, the General Accounting Office warned about the fragility of the flu vaccine production system. Last year, the National Academy of Sciences said there were early warnings signs of problems. The Bush administration says they heard the warnings, but there was a limited amount they could do.

DR. ANTHONY FAUCI, NATIONAL INSTITUTES OF HEALTH: It's virtually impossible to correct it overnight. This is an accident that was waiting to happen for literally decades.

COHEN: The administration says its strategy has been to try to persuade more pharmaceutical companies to make vaccines to increase the supply. But critics point out that at the beginning of Bush's presidency, there were four companies supplying flu shots. This year, with the vaccines from Chiron no longer available, it's down to one. Critics add, Bush should have had been a plan B, such as having the government make the vaccine.

AVORN: We say this is an obligation of the entire government, to make sure that the American people have roads, defense, and perhaps we need to add vaccines to that list.

COHEN: Federal health officials call that strategy unworkable, saying it would be inefficient to have the government make vaccines. In the presidential debate earlier this month, President Bush offered his explanation for the vaccine shortage.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Vaccine manufacturers are worried about getting sued. And so, therefore, they have backed off from providing this kind of vaccine.

COHEN: President Bush signed into law Friday a tax bill that included a provision that would limit the liability of vaccine makers from excessive lawsuits. But expert panels in the last few years have found that liability really hasn't been the issue. Manufacturers have backed away from making flu vaccines simply because it isn't profitable. In fact, the man who for a decade headed the vaccine program at the Centers For Disease Control, says fear of lawsuits was never a big issue.

DR. WALT ORENSTEIN, EMORY UNIVERSITY: I have not seen liability as a major problem with the flu supply to date.

COHEN: There have been many signs that there would, someday, be lines. What's left for debate is whether the lines could have been reduced or avoided.

Elizabeth Cohen, CNN, Atlanta.

(END VIDEOTAPE)

BLITZER: Still ahead tonight, the sweet taste of success, but not too sweet, a husband and wife "On the Rise" on a river of Grown Up Soda.

Stay with us.

(COMMERCIAL BREAK) BLITZER: Our next piece is one part love story, one part business case study, a husband and wife experiment built on a shared love of soda pop and a belief that even the little guys can take on the Cokes and the Pepsis of this world by offering something they don't, in this case, by offering less.

(BEGIN VIDEOTAPE)

STEVE HERSH, PRESIDENT, GROWN UP SODA: Well, it's called Grown Up Soda. It's a line of natural sodas that are not too sweet.

JEANNETTE LUOH, VICE PRESIDENT, GROWN UP SODA: And I am the vice president.

UNIDENTIFIED FEMALE: It's really good.

HERSH: My name is Steve Hersh. And I'm the president.

LUOH: And I'm Jeannette Luoh. And I am the vice president.

UNIDENTIFIED FEMALE: That's good.

LUOH: I used to drink a lot of soda. And I stopped drinking soda, because all of the sodas out there are just too sweet.

HERSH: I used to pasteurize. So, when you pasteurize, you don't need preservatives.

HERSH: We really just started mixing juice and seltzer in our kitchen and trying to figure out what the nice balance between the sweet juice and the seltzer. And we just came out with different levels.

It started in June of 2003. And then we were profitable in our 11th month.

LUOH: We named the product Grown Up Soda, because originally that people who like us, grown up, would love the soda.

HERSH: The way the bottling works and the whole process is, it starts with raw materials and ingredients.

Those ingredients go in a big mixing tank. What then happens is water is fed in. The empty bottles go through a filler. They are filled very rapidly. And a cap goes on, a capper. Then what happens is, it goes through what is called a heat tunnel or a pasteurizer. It comes out. They're cooled.

They are then labeled. GUS is available now in 21 states and growing. We started a year ago in the New York market, where we're based. As we do these sampling events for someone to take a little sip and go, oh, OK, I'll take one of each flavor and put it in their court. And it's immediate gratification. It's like something that we thought was kind of cool and mixed in our kitchen became something that people really value and want to buy. It's fun.

UNIDENTIFIED MALE: That's good.

(END VIDEOTAPE)

BLITZER: Not too sweet. I'm getting thirsty just watching.

We'll wrap things up in just a moment. We'll be right back.

(COMMERCIAL BREAK)

BLITZER: That's our NEWSNIGHT tonight.

A couple of programming notes. I'll be back, of course, tomorrow, twice a day weekdays, noon and 5:00 p.m. Eastern. Among my guests tomorrow 5:00 p.m. Eastern, Phil Jackson, former coach of the Los Angeles Lakers. He has got a hot new book out. We'll talk to him tomorrow about what's going on there.

Also, this note, I'm going to be reporting from New York until Election Day, through Election Day. We'll be reporting from the Nasdaq on November 2, very, very exciting times for all of us. Stay with CNN, of course, for all the best political coverage up to the election and beyond, if it goes into extra innings.

Until then, Aaron will be back tomorrow night. I'm Wolf Blitzer in New York. Thanks very much for joining us.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com


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