captioning sponsored by macneil/lehrer productions >> ifill: good evening. i'm gwen ifill. same sex marriage: do states have the power to make it illegal? >> brown: and i'm jeffrey brown. on the newshour tonight, a case in federal court stems from a ban on gay marriages approved by california voters in 2008. spencer michels reports from san francisco, and ray suarez debriefs margaret talbot of the "new yorker." >> ifill: then, a debate on how to pay for health care reform. >> brown: special correspondent

kira kay looks at the race against time to rebuild the poorest nation in the western hemisphere. >> some say that we just want to get out of misery to get into poverty. and i believe that is a beautiful sentence for haiti, because it is exactly what we are aiming for right now. >> ifill: the supreme court revisits a case it decided last year, this time with a new justice on the bench. margaret warner gets the details from marcia coyle of the "national law journal." >> brown: and the latest late night drama, as nbc drops jay leno from its primetime lineup. >> you know, actually if they did cancel us, it would be an easy move for me, because i still haven't unpacked from the last show they cancelled us from. so everything's still back there, so it's fine! >> ifill: that's all ahead on tonight's pbs newshour. major funding for the pbs newshour is provided by: >> what the world needs now is energy. the energy to get the economy

humming again. the energy to tackle challenges like climate change. what if that energy came from an energy company? every day, chevron invests $62 million in people, in ideas-- seeking, teaching, building. fueling growth around the world to move us all ahead. this is the power of human energy. chevron. >> this is the engine that connects abundant grain from the american heartland to haran's best-selling whole wheat, while keeping 60 billion pounds of carbon out of the atmosphere every year. bnsf, the engine that connects us. the william and flora hewlett foundation, working to solve social and environmental problems at home and around the world. and with the ongoing support of these institutions and foundations.

and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. >> ifill: the fight over gay marriage went to federal court in california today in a case that may have nationwide implications. newshour correspondent spencer michels begins our coverage. >> reporter: gay marriage had been before the state courts previously but now it was before a federal judge. the issue is whether the u.s. constitution bars states from outlawing same-sex marriage. specifically the case turns on proposition 8, the california referendum that barred gay marriage and that won voter approval in november of 2008. outside the courthouse today, the hotly debated issue

brought out a range of emotions. >> intense interest in the proposition 8 case at federal court here in san francisco brought demands mostly from those who favor same-sex marriage for television coverage of the trial. the court said it had received 140,000 emails, all but 32 of them, favoring television transmission. the judge said he would allow such transmission on a delayed basis on you-tube, but the u.s. supreme court overruled him at least for the time being and said they would have something more to say by wednesday. but the main focus is on gay marriage itself. opponents of prop-8 staged protests long before it passed. gay couples say they will be watching the proceedings closely. san franciscans john lewis and stewart gafney were plaintiffs in a previous gay marriage suit and are among those same- sex couples legally married. >> stewart and i have been a loving, committed couple for 23 years. we're legally married in the

state of california. but we're not just californians. we're americans too. we will not rest until we have the freedom and liberties that our constitution promises us in every single state in this great nation. >> reporter: the judge has asked for testimony on how legalizing gay marriage might affect traditional marriage or any children involved. in turn, supporters of the ban will argue gay marriage is still a social experiment. andrew pugno is one of the attorneys arguing the case for proposition 8 and against same- sex marriage. >> 14 million people voted on proposition 8. to put up one or two or three witnesses and try to characterize all of prop-8 based on one or two people's opinions is really not representative. >> reporter: san francisco started allowing gay couples to marry in 2004. and in the rest of california same-sex couples briefly had the right to marry until the passage of proposition 8.

taking the case into federal court could affect marriage laws across the country. only five states currently recognize same-sex marriage. 36 have banned it. the san francisco trial is expected to last two to three weeks. whatever the outcome, the u.s. supreme court is ultimately expected to have the last word. >> brown: ray suarez has more about this case and what's at stake. >> suarez: margaret talbot has been covering this story for the "new yorker" magazine. her reporting on the subject appears in this week's issue. margaret, as we just heard spencer michels report, the voters of california have spoken on this question. how did it get into court? >> well, because two attorneys, kind of unusual pair of attorneys, ted olson and david boies who people may remember from the bush v.gore case in which they were on opposite sides, boies a democrat and olson a republican. they decided that this proposition 8 made a good case

for testing the constitutionality of these bans on same sex marriage. they decided to mount a fairly ambitious case that they hoped would make it and likely will make it to the supreme court. >> suarez: david boies you might figure. but ted olson is an interesting person to be arguing this. making a conservative case for gay marriage? >> it is a surprise to a lot of people. in fact initially there was quite a bit of skepticism about it particularly from the main line gay rights groups who were wondering about him as this kind of johnny-come-lately to this issue. i think they have been convinced of his sincerity. it's a risky move. i think he , from having spent some time interviewing him, i would say he very much believes in this case. he would argue, i think, that marriage... the supreme court has repeatedly held that marriage is a fundamental right. while they were certainly not held that it's a fundamental right to marry someone of the same sex, i think he is going

to argue that it's an extension of that right which the supreme court has repeatedly recognized. >> suarez: you mentioned risky move. a lot of the gay civil rights organizations thought so too. initially they opposed this effort. didn't they? >> they did. they thought it was premature. they worried about it going to a supreme court that would not be sympathetic and having a setback that they would have to come back from. they have generally followed the policy of the strategy of going state by state, taking it slowly. trying to convince people that the sky won't fall if state by state you experiment with gay marriage. and this was not an incremental approach. this was sort of a going long and going for the gusto approach. they're worried about the possibilities. >> suarez: they just suffered two defeats in new jersey and new york. >> they did. they did. three defeats in a row.

of course, the district of columbia, the city town ... council did vote to allow gay marriage in d.c.. >> suarez: some of those gay civil rights groups came around and started to support the boies-olson effort in a california court but weren't allowed to join the suit. what was the strategy there. >> yes. i think they at a certain point had a "if you can't beat them, join them" attitude and decided to try to move forward with the lawsuit. at that point actually olson and boies were opposed to it because they felt the they wanted to run a very kind of controlled on-message case and that this... if there were too many other parties involved that it would kind of fragment their argument. they were concerned about that. ultimately the judge sided with them and did not allow these groups to intervene. >> suarez: the majority of states, as was mentioned earlier, have explicitly said there can be no gay marriage in this state. what are the implications for

the california case? if proposition 8 is overturned in a courtroom in san francisco, what does it mean to those states across the country that have passed defense of marriage acts. >> what would likely happen is the case would be appealed, first to the 9th circuit and then to the supreme court. if the supreme court were to rule in favor of olson and boies's side, then you would have legalized same-sex marriage throughout the country. that's a big "if" at this point but that would be the implication ultimately. >> suarez: they're counting on already starting out with how many votes on the supreme court if the case indeed does get there? >> well, i think that they would... the most they could hope for would be five. that they would have the four, we assume, liberal justices and then possibly justice kennedy who did write the opinion in the case lawrence v texas which was the case that overturned the remaining sodomy laws that were on the books in many states. across the united states. and he wrote a fairly sympathetic opinion toward gay

rights so some people interpret that as a sign that perhaps he might be open to considering gay marriage even though in general we identify him with a conservative group of justices. >> suarez: one precedent we're likely to hear about is loving versus virginia which struck down bans against people of different races marrying. why is that germane in this case? >> well, for a couple of reasons. yes, that was in 1967. it's a landmark case. well, for one thing, what's interesting is that more people who were polled at that time, more americans were opposed to inter-racial marriage than are opposed to gay marriage today. which is interesting. because one of the questions about this case is, is this pushing the court to get out too far ahead of where public opinion is? if you look at just the numbers in polls you actually see that more people are in favor of gay marriage today. but then you have the state-by state... you look at the state- by-state picture.

we do have these nearly 40 states that have passed these amendments against gay marriage whereas at the time of loving versus virginia there were only 15 states in the south that still had these old laws on the books. so you can kind of use that precedent or example either way, depending on whether you want to be hopeful about this case. >> suarez: quickly before we go, who is the petitioner, the miranda, the roe, who is the case built around, who is the person they're going to court in favor of? >> well, there are two couples who are plaintiffs in this case. one is a female couple who live in berkeley and have four children. and the other is a male couple who are from southern california and, you know, they have decided they're willing to be the public face of this case that is controversial and may take several years to unfold, but they are definitely willing plaintiffs. >> suarez: margaret talbot of

the new yorker, thanks for joining us. >> thank you. >> ifill: for the other news of the day, here's hari sreenivasan in our newsroom. >> sreenivasan: senate majority leader harry reid defended his record on race today and his relations with president obama. the nevada democrat apologized over the weekend for remarks about then-candidate obama in 2008. according to the new book "game change," reid said the illinois senator could be elected because he was a "light-skinned" african-american "with no negro dialect, unless he wanted to have one." today, outside las vegas, reid said in fact, he actively encouraged mr. obama to run. >> i can still remember the meeting that took place in my office with senator barack obama telling him that i think he could be elected president. i've apologized to the president. i've apologized to everyone that is within the sound of my voice that i could used a better choice of words.

>> sreenivasan: on sunday some leading republicans called for reid to resign. but today, a spokesman for reid said he has no intention of stepping down as majority leader. he says the people that make hay out of him makes no sense. this was a deadly day for nato forces in afghanistan, with three americans and three other western soldiers killed. the americans died in a firefight with militants in the south. still, the top u.s. commander in afghanistan, general stanley mcchrystal, said the tide is turning against the taliban. >> i believe that we have changed the way we operate in afghanistan. we've changed some of our structures. i believe that we are on the way to convincing the afghan people that we are here to protect them. we've been at this for about seven months now. i believe we've made progress. it's not a completed mission yet. >> sreenivasan: another 30,000 u.s. troops are deploying to afghanistan. that will raise the total american force there to nearly 98,000. the suicide rate is rising sharply among young male veterans between 18 and 29 years

of age. between 2005 and 2007, the rate of soldiers who took their own lives increased 26%, according to the veterans affairs department. last year at least 349 active duty and reserve service members committed suicide, more than were killed by enemy action in iraq or afghanistan. citrus growers in florida struggled today to outlast a wave of record cold. south florida was under a hard freeze warning, and readings in miami fell below 37 degrees. farther north, growers kept spraying crops to protect them with an insulating coat of ice. but a spokesman for the state's largest citrus growers' group reported "considerable" damage. florida produces 40% of the world's orange juice supply. there were signs of confidence today among the big three detroit automakers. at the annual detroit auto show, chrysler said it's planning to hire more engineers and other workers, starting next monday. general motors reported it can't keep up with demand for new vehicles. it said it may reopen some closed factories. and ford won two major awards,

for truck of the year and car of the year. it's the only major u.s. automaker not to accept federal rescue aid. on wall street today, industrial stocks got a boost on news of higher exports from china. the dow jones industrial average gained more than 45 points to close just under 10,664. the nasdaq fell more than four and a half points to close at 2312. those are some of the day's main stories. i'll be back at the end of the program with a preview of what you'll find tonight on the newshour's web site. but for now, back to jeff. and still to come on the newshour, the struggle to create jobs, expand industry, and attract investors in haiti; the difference one justice makes on the supreme court; and the drama in network comedy. >> ifill: that follows our debate over taxing high-cost insurance plans. senate and house democrats who are hashing out the differences between their health care reform bills behind closed doors have a major disagreement on their hands. how to pay for it. should high-value insurance

plans be taxed or should high- income households pay the price? the senate proposal, which president obama supports, would raise about $150 billion over six years. the money would come from imposing an excise tax of 40% on the portion of any policy that costs more than $8500 for individuals or $23,000 for families. the congressional budget office estimates that would affect 1 in 5 workers by 2016. the white house and some economists argue this approach would rein in health care spending by discouraging excessive insurance coverage. >> the patient protection and affordable care act is passed. >> ifill: just before the senate approved its version of health care reform last month, president obama endorsed the so-called cadillac tax in a national public radio news interview. >> i'm on record as saying that taxing cadillac plans that don't make people

healthier but just make more money out of their pockets because they're paying more for insurance than they need to, that's actually a good idea, and that helps bend the cost curve. that helps to reduce the cost of health care over the long term. i think that's a smart thing to do. >> ifill: but house democrats and labor unions remain steadfast in their op igs to the cadillac tax which they argue would harm working people. the president of the afl-cio along with other labor leaders pressed his argument at the white house today. he also made his case in a speech to the national press club. >> instead of taxing the rich, the senate bill taxes the middle class. by taxing workers' health plans. not just union members' health care plans. in fact, most of the 31 million uninsured or insured employees who will be hit by the excise tax are not union members. >> ifill: house leaders support a plan to raise taxes on families earning a million

dollars or more and individuals who earn $500,000 or more. for more on the pros and cons of the so-called "cadillac tax," we turn to jonathan gruber, a health economist at the massachusetts institute of technology. he is also a paid consultant to the obama administration. and josh bivens, an economist at the economic policy institute, a think tank that receives some funding from labor groups. welcome to you both. jonathan gruber, why is this a good idea? >> well, thanks for having me on, gwen. i think it's a good idea because we need to look at what happens currently when people make the decision between getting paid in wages or health insurance. if m.i.t. offers to give me a $1,000 raise i'm only going to take home about $600 because i'll be taxed. if it says here's $1,000 extra fringe benefit in our health insurance i get to keep the whole $,000 because i'm not taxed on that. that tax subsidy costs our nation about $250 billion a year.

and leads by many economists in the cbo estimates to excessive health insurance coverage and rising health care costs. what this bill would do is slightly scale back that existing tax bias, by taxing the most expensive plans on the amount they spend above a certain threshold. and basically scaling back the give-away we now have to the most expensive health insurance plans. >> ifill: let me just let josh bivens in here now because he says it's a give-away to the existing health insurance plans. what do you say? >> i don't know if i'd call it a give-away. i do think it's not a great idea. one problem is it's often... it's called a cadillac tax. the idea is they were taxing outlandish plans that provide generous coverage. it's not very well targeted at all. i would be in favor of a well targeted way to do this but this is a very poorly targeted policy proposal. >> ifill: the people who benefit from it are just middle class folks? >> i would say there are reasons why health insurance plans are expensive and generosity is not necessarily one of them.

we have a very dysfunctional health insurance market and height cost plans do not equal high value plans. research says of the entire spread of health insurance premiums their cost. only 4% of that can be accounted for by generosity of plans. you're likely to have an expensive plan if you work for a small firm, if you work with a firm with an aging work force. it's not about cadillac plans or lavish benefits it's people who work in those kinds of workplaces. it's poorly targeted. >> ifill: are you targeting the right people, jonathan gruber? >> i think you are, gwen. i think josh's points are right. i think you need to remember that we're not talking about a new tax on these people. we're talking about saying they currently get an enormous tax break. we're going to slightly scale that back and use the money to cover uninsured people. so the issue is, are you willing to slightly scale back an existing tax break we give to the most expensive plans to raise $150 billion that makes insurance affordable for the poorest? is that's a trade-off we should be willing to make.

>> ifill: are we talking about a new tax or are we talking about letting off... relieving someone from a tax cut they were always get something. >> i think that's a distinction. one way or the other we're going to have to finance health care reform with higher taxes on some people relative to what they're paying. >> ifill: you're questioning who those people should be. >> i'm also questioning whether or not this is the best way to do it. we have a competing proposal in the house reform bill that is much more progressive tax. it only hits about the top 0.3% of income earner. the house tax raises more money so we need fewer savings in the health care sector. the one reason why you have the preference for the excise tax over the health bill which has a much more progressive surcharge is the policy virtues that professor gruber is talking about. i don't think those policy virtues are anywhere near large enough to justify going with a much less progressive tax. >> ifill: when you talk about this tax, jonathan gruber, when you talk about this so- called cadillac tax, what is actually taxed? what is included in snit.

>> what is actually taxed is the dollar value of health insurance plans that exceeds that threshold. let's take a simple example. imagine that my health insurance costs $26,000 a year for my family. what that means is i'll be taxed on 40% of the $3,000 difference between the $23,000 threshold and the $26,000 cost of my plan. or i'll pay about $1200 a year. that is versus the current tax break i get of about $9,000 a year on that plan. so it's scaling back a bit. i think the main argument for it, i think josh laid it out very well. it's a trade-off between... it is less progressive although not that much less progressive but somewhat less than what is proposed in the house. on the other hand, it's generally viewed as one of the very few things we know can actually help with health care cost control which is an important goal of this bill . >> ifill: josh bivens, what if you are a company that has older workers which so many of these bricks and mortar companies do, does that mean you are paying an extra

penalty in order to keep them insured? >> pretty much, yes. you're going to have one key reason why you're going to have health insurance plans that go over this threshold is if you have a work force that has a lot of older workers who are more likely to have expensive chronic conditions. i think everyone agrees with this, you're going to see employers scale back on the generosity of their plans to make sure they are not hit by this health insurance tax. when they scale back on the generosity of their plans you're going to see higher out of pocket costs for the people wanting the same health care they had before and you're going to see a big risk of exposure to that risk of out of pocket costs going on to consumers and households. >> ifill: there's a big difference, jonathan gruber, right now exactly in the way you add this up, exactly how the money would be... how that cost curve would be bent and how the money would be saved. you're saying that by increasing this tax you're basically in the end going to increase wages and save money. he's saying he's not so sure that will happen. am i interpreting that correctly? >> that's exactly right, gwen. basically we agree that one

way the main way employers will react to this tax is by scaling back the generosity of their plans. i would argue that there's no evidence that that scaleback will actually reduce health. we're talking about the plans of even older workers. the plans that receive this threshold are very, very generous. they'll be moved to very generous plans. 90% of those higher wages will go to workers below $200,000 a year in income. so it's basically going to be trading off excessively generous benefits for higher wages for their workers. >> ifill: jonathan gruber, you've consulted with the administration on this. a lot of house democrats think this is a deal breaker. what do you do about that? >> well, i think partly it's about education. partly it's about getting reasonablyable conversations like the ones we're having here instead of ptomemic conversations that don't make the points clear. i think it's about compromising.

an additional medicare tax and a compromise where you recognize the cost savings potentials, recognize the priorities of the president but at the same time move towards the house by having more progressive revenue raising other taxes like the medicare tax or a small millionaire's tax. >> ifill: what about that, josh bivens? >> some sort of compromise could be useful here. >> ifill: like what? >> i mean, one, have the senate bill move a little bit toward the house. but if you want to do some kind of cost sharing i think you have to actually target excessive benefits. i don't think the excise tax does it. one can imagine a way of constructing a thax that goes after plans that are generous in terms of actual generosity of coverage. >> ifill: what is an excessive benefit. >> that's a big problem too. one person's excessive benefits is another person's insulation from risk. you have people, you know, i'm enough of an economist to believe that people trade-off wages for these health insurance benefits. they've voted with their feet. they clearly value these

benefits. excessive is tough. but i would say if we are going to enforce more cost sharing to bend the cost curve down which is what this excise tax is all about we need to go after costs that do seem to be excessive. that does mot mean expensive. expensive and generous in the dysfunctional american health insurance market are too very different things. >> ifill: and the final point from you, jonathan gruber. >> i think this is exactly the kind of conversation we need to have more of in the closing weeks of this debate and recognize the trade-offs. the key point is we need the money to make health insurance affordable for low-income people. this is a win-win solution that can raise the money and control health care costs. i think it's critical that it be part of the final health care package. >> ifill: if you can get it passed. >> absolutely. >> ifill: thank you both very much. >> thank you. >> you bet. thanks, gwen. >> ifill: next, the supreme court revisits the constitution's confrontation clause.

margaret warner has that story. >> warner: seven months ago, the high court ruled 5-4 that crime lab results cannot be used in a trial unless the analyst who prepared those results testifies, and is subject to cross-examination. today, the court took the issue up again, in a drug case from virginia that's remarkably similar to last year's. the difference between them may come down to who's sitting on the bench. for more, we're joined by marcia coyle of the "national law journal." >> warner: the glaring question is why would the court choose to take up an issue they had just decided last year? >> i think there may be two reasons here. i mean we're never quite sure why the court agrees to review a case because the court doesn't say. first of all, this case from virginia is not identical to the case the court decided last term, even though it's very similar in the issue it presents. it may be that last term's decision which was 5-4-- and

you only need four justices to agree to hear a case-- it may be that the four justices who dissented last term wanted to take another shot at this issue. and this case presented a similar issue. it may be, too, that some of the justices in dissent were hoping to narrow the decision that was made last term. secondly, this was a 5-4 decision. it created a lot of controversy in the states. one of the justices in the majority last term, justice souter, is no longer on the bench. justice sotomayor has replaced him. she may have a different view. so it may put the decision last term at risk of being overruled. >> warner: was it her background as a prosecutor and the fact that as a circuit court judge she more often than not ruled with the government, didn't she, in law enforcement or criminal case? >> the speculation is she

might have a different view because she's a former prosecutor. and, yes, she was a fairly tough law-and-order judge. although she did rule for the defendant fairly often as well. she's very even-handed as a judge. >> warner: there were actually two cases today similar certainly to one another. is there anything particular about the cases or are these pretty standard drug cases and the big issue is really how they were tried at the trial? >> they are definitely standard drug possession cases. two separate cases, separate incidents. one involving police finding drugs in a car and the other involving police finding drugs in an apartment. at trial, the state introduced lab reports in these two trials. certifying what the drug was, cocaine, and the amount of the drug in each case. defendants objected to those lab reports saying that putting the lab reports in without the analysts who made

them testifying violated their confrontation rights. they were convicted. they appealed. that's why they're in the supreme court today. they lost their appeal before the virginia supreme court. >> warner: when you say confrontation rights, you mean that right in the constitution we all know from television and civics class that an accused has the right to confront the witness against him. >> absolutely. starting in about 2004 the supreme court began to reexamine the confrontation clause. and has issued a series of opinions now in which it's holding to the history and the actual wording of that clause that the prosecution has to produce witnesses who want to give testimonial evidence. >> warner: what did the lawyer for these two defendants, what did he argue today and how did the justice respond? >> richard friedman represented the two criminal defendants today. he said basically that last term's decision, known as

melinda diaz explicitly said that an accused's ability to subpoena the lab analyst was not a substitution, an adequate substitute for the confrontation clause right. this is what virginia's law does. but the wrinkle here is that virginia says that the accused can demand that the prosecution produce the witness, not that the prosecution must produce the witness. >> warner: justice sotomayor, what were her questions like? >> she focused mainly on the state which was represented by the state solicitor general steven mccullough. she asked, well, you know, these criminal defendants did what reasonable criminal defendants do. they objected to the introduction of the lab reports. how were they supposed to know that under virginia law they were supposed to demand the presence of the analysts? and the state responded that, well, it's really the defense attorney's responsibility to

preserve the confrontation clause right. but then she added, well, you know, how do we articulate a rule here that off vee yates defendants' concerns that the prosecution is always going to introduce testimony by affidavit. and fourth, the defense council... and force the defense council to call an adverse witness and do what she called a cold cross-examination, meaning that the prosecution doesn't first examine the witness. >> warner: so fair to say or do you think she tipped her hand in either way? >> i don't think she did. i think her questions, as they've been in the past, were very pointed, very even handed of all sides. >> warner: the last question. she's been on the court three months. i know there haven't been any big decisions yet. in her questioning, what can you tell about what kind of justice she's turning out to be? >> very careful, cautious. specific. fact oriented justice. she's is one of the... among

the most aggressive questioners on a bench on a bench that's a very hot bench for questions. >> warner: meaning she asks a lot of them. >> yes. she may well make the difference in this case as we spoke. >> warner: marcia coyle, thanks for being back with us. >> my pleasure. >> brown: next who will have the last laugh? we check in on the changing chairs in late night tv. >> brown: who will have the last laugh? we check in on the changing chairs in late night tv. >> i don't think there's any truth to the rumor. nbc only cancels you when you're in first place. >> brown: actually jay leno's bosses at nbc decided he's not okay at least not at 10:00 p.m. where they had moved his show last september . the experiment seems to have failed. leno will move back to his old time slot at 11:30 where he's been the ratings king for some 15 years. conan o'brien who took over

the old tonight show that lost about half leno's audience would keep the name but move his starting time to 12:05 a.m. and jimmy fallon and his late night show will also be pushed a half hour later to a 1:05 a.m. start. in the 10:00 p.m. slot the jay leno show has attracted in 5.8 million viewers, a good number for late night, not so good for prime time. local affiliates rely on that for as the lead-in to their 11 o'clock newscast. the next big question for nbc is whether conan o'brien will accept the move. friday night before the official announcement he was taking some humorous jabs at his employer. >> i'm sure you've all heard the rumors, ladies and gentlemen. nbc has finally come up with an exciting new idea. they want me to follow jay leno. >> brown: the jay leno show will end its 10:00 p.m. run on february 11 as nbc begins its coverage of the winter

olympics. friday lemo was already joking about his next move. >> they did cancel as it would be an easy move for me because i still haven't unpacked from the last show they canceled. everything is still back there so it's fine. >> brown: more on all this now from robert thompson of >> brown: more on all this now from robert thompson of syracuse university, where he's founding director of the blyer center for television and popular culture. and kim masters, who covers the entertainment business as host of kcrw's "the business" on public radio in los angeles. kim masters, it was the affiliates and their 11:00 p.m. newscasts. explain how that part of the tv business works. >> well, the affiliates rely on their local newscasts for advertising revenue. it's a very important part of their picture. and they found that they were losing their audience. in some cases it was quite precipitous. double digit drops. dropping , newscasts dropping from number one to number 2 or 3. they basically told nbc that

if nbc did not pull jay leno at 10:00 they were going to start preempting the show. there was going to be something of a revolt. so that is what nbc maintains really forced its hand. nbc maintains from its standpoint it would have stuck with jay leno for a year. >> brown: that's kim, just to stay with you, that's even though jay leno was pulling in the numbers that everyone thought he might, i guess, right? >> well, that's nbc's story. i mean there's sort of a little bit of a double speak about what nbc's motive here was. nbc partly just wanted to keep jay leno on the network and not allow him to set up a rival show probably on abc or fox. but they cast this as an attempt to save money. they do have a very legitimate problem, as all the broadcast networks do, programming at 10:00 p.m. it's very intensive to do scripted programming. those programs when they don't work are really expensive. when they do work they're not as successful as they were in the days of e.r., when television audiences were less fragmented than they are now.

there's a little bit of a double understanding. nbc maintained if they could have kept leno on maybe in the summer when other competitors are doing reruns when there's less competition maybe it would have worked but their affiliates wouldn't wait long enough to find out. that at least is the story that nbc is telling us. >> brown: robert thompson, now we have this interesting situation where nbc is sort of substituting one experiment for another. if you look at what might happen on late night television. >> yeah. i mean they seem to have maximized their disadvantages here across the board. they seem to perhaps be continuing to do so because first they did this very dangerous experiment of putting leno on at 10:00. that didn't work. then the idea is, okay, let's try to make that go away and put him back on at 11:30 where he was at number one. however it sounds like they're going to make that an experiment as well because it will be leno in a half-hour time slot which is going to be totally different in rhythm,

in structure, than leno is used to doing. it might take him a long time to get going on that. i think there's a sense in which they're not going back to the way things were. they're going to yet another experiment which could be just as dangerous. part of it is simply the math. they have got a surplus of programming on late night. they've got three stars and they've got two hour-long time slots. as opposed to their other major problem which is they have no programming to replace 10:00 monday through friday with, which i suspect they are now scrambling to find something in there that's going to do better than leno and finally make those affiliates happy. >> brown: kim masters, let's talk about the 10:00 slot. an nbc official was quoted as saying they're going back to basics. figuring out the business model to make that work is a problem. what happens now both at nbc and at other places? >> well, the other networks were hoping to take more advantage i think of the absence of a competition on

nbc than they did at 10:00. that's one of the points that the head of nbc has been making with the press is that he ceded that hour to abc and cbs. fox doesn't have programming at that hour. they still didn't really do better. they in fact went slightly backward in their ratings. they're all going to try to figure out how to make this work. the big problem at that hour tends to be dvrs increasingly. if you're not seeing something at 10:00 that you particularly want to watch you're going to watch what you have saved up on your dvr. what nbc will do is you'll see things like law and order which was never really a great fit at 9:00 anyway. more of a gritty crime drama moving into that 10:00 hour. you'll see some "dateline." and they are reaching out for a bunch of very traditional, scripted programming from very established producers like jerry bruckheimer or like dick wolf with the law and order l.a. they're talking about a rockford files remake. as they say, they're going

back to basics. it's almost ironic they were telling us a short time ago they were going to reinvent television. all of that has been discarded. it's back to basics. >> brown: bob thompson just to broaden even further. there's the dvr. one new factor here. there's the competition from the internet which we talk about a lot. but a lot of this also has to do with competition from cable i guess, right, in terms of what the networks are facing. >> that's right. i think this had a lot less to do with the new digital revolution and the internet and all the rest of it. i think this got down to good old fashioned fragmentation of the audience which has been happening since cable started kicking in the 1980s. when you've got so many other choices of places to watch, the networks are having a hard time getting audiences big enough to justify the kind of expenditures for these sorts of scripted shows. i wouldn't be a bit surprised if nbc and perhaps even the second place network sometime

in the foreseeable future didn't cede the entire 10:00 hour back to the affiliates. as a matter of fact when there were discussions about what to do with this leno thing one of the suggestions the affiliates made was simply give the hour back to us. fox, of course, doesn't play anything on prime time from 10:00 to 11:00. they let their affiliates play an early version of the news. my guess is that something like that could probably happen not so much for the first place network which is generally doing fine with three hours of prime time a night. if you're in third place, that's not so much the case. >> brown: and kim masters, just in our last minute and speaking of fox, i mean a lot of this still depends on conan o'brien i guess who has an interesting contract at nbc would have to deal with. and the potential of perhaps moving. we've heard even some talks about i guess he's in talks with some of his representatives with fox. what do you know about that? >> it's very unclear what's going to happen with conan and what can happen with conan contractually.

nbc is certainly not telling us. i disagree with bob a little bit. i think leno an 11:30 is fine. a mono log and a guest and out. what is the tonight show if it's on at 12:05? will fox really be interested? they're doing pretty well right now. they don't want to write a big check to conan. he's been out at 11:35 and it hasn't gone that well. all of these questions are still to be dealt with. >> brown: all right. kim masters and robert thompson, thank you both very much. >> thank you. >> thank you. >> brown: now, another of our stories on fragile states around the world. tonight: haiti. special correspondent kira kay reports on the struggle to overcome decades of political turmoil and extreme poverty. >> reporter: in a small garment factory in haiti's capital port-au-prince a class of new recruits is being taught how to lock stitch.

an american is here to help tackle the learning curve. >> what we have are a lot of students that have never worked at all any place. they need to learn everything. from the work ethic to running the machine to sewing to threading. the very first day they were a little intimidated by it. >> reporter: this initiative is being funded with u.s. government dollars. it represents a significant rethink of foreign aid. harnessing the potential of the private sector to rebuild a fragile country. alongside more traditional humanitarian efforts. 20-year-old never went to school and can't read. but she's hoping a job in haiti's garment industry will change her life and improve her country too. >> i like what they are teaching us. i hope they can keep doing it for a long time because there are a lot of young people in the streets without jobs. >> reporter: haiti is still a struggling country to be sure. but for the first time in years there is a palpable feeling of hope here.

and ground zero is this industrial park where factories, moth balled during years of instability, are now being brought back to life. the goal is to create tens of thousands of jobs as fast as possible. from the 1960s to the 1980s under the dictators haiti was known for assembling garments for the u.s. market including stores like sears and j.k. penny. but after the ouster of the dictators the country spiraled into chaos. coups and street violence from within and a united nations economic embargo enforced by u.s. warships. investors fled. so did thousands of haitians, many heading for u.s. shores in rickety boats. by 2006 haiti had hit a miserable low point. >> it was really a war zone. >> reporter: factory owner george sistine remembers the gang violence that spread from a nearby slum to his factory wall. >> bullets coming through the

roof hitting workers. the last one was sitting right here, as a matter of fact. we just fixed the hole. every time it was a panic and production suffered. after a while i could not... i was losing too much money so i had to close. >> reporter: but just as he was closing his doors, the tide started to turn. the election of the new president reduced political strife and brought in a series of reforms. with his blessing, a united nations peace keeping force already in the country resolved to get tough on the crippling gang violence. even taking casualties. within months, the urban warfare had largely stopped. haiti's population has mostly accepted the peacekeepers especially the brazilians whose own experience with city slums helped them understand the job here. >> this is the poorest area of port-au-prince. >> reporter: they still patrol this slum which just a few years ago was perhaps the most dangerous place in the western hemisphere.

outside what used to be a main gang headquarters, still pock marked with bullet holes, brazilian peacekeepers today serve more as crossing guards than warriors. >> haiti is no longer the place where people are kidnapped by the score every month. it is no longer a place where armed people drive around in vehicles shooting up the town. >> reporter: u.s. ambassador kenneth merton is back in haiti for the third time in his diplomatic career. he says u.s. government policy in haiti is now being reshaped to take advantage of this moment of stability. >> we need a partner here to work with. that partner can't be other ngos. it needs to be the haitian state. >> reporter: the task of rebuilding haiti is undeniably huge. it is the poorest country in the western hemisphere. more than half its people live on just a dollar a day. public services like health care and a free education are almost nonexistent. >> we just want to get out of misery to get into poverty. it's what you are aiming for

right now. >> reporter: this man is haiti's prime minister. >> we have a country where people are not working. the capacity to increase is almost 0. if creating an environment to create jobs , attracting new investors coming from haiti but mainly creating jobs, creating a good environment. from there i believe you can tackle all the problems. >> reporter: and so as part of its new initiative to partner with haiti's government and spur the return of investors, the united states congress last year passed what is called the hope 2 act. it allows garments assembled in haiti to be sold duty free in the u.s. and haiti's investment push is getting heavyweight help. former president bill clinton was recently appointed the u.n. special envoy to haiti. he's come to the country with scores of potential investors

in tow. they looked at haiti's garment industry and fledgling agriculture and tourism sites as well. >> we know that this is a great opportunity not only for investors to come and make a profit but for the people of haiti to have a more secure and a more broadly shared prosperous future. >> the whole of haiti's budget would not have brought that kind of support , advertising and exposure. president clinton's knocks on somebody's door and says why don't you put 1% of your business in haiti, that person is going to listen. >> reporter: clinton's support and the hope ledge ration... legislation are keeping this businessman busy. he's now the official point person for this new investment and his phones haven't stopped ringing even during our interview. >> we have five different people who have dive different potential industrial park sites so i have to be like a dispatcher.

investors from brazil, from ireland, and from korea call me one after the other. it's been very hectic, believe me. it's a good problem to have. >> reporter: but all this promise of haiti's expanding garment industry even if lasts isn't enough to pull this country entirely back from the brink. that's in large part because more than 60% of the population here lives in the countryside. and risks being left out of haiti's moment of hope as investment money gets funneled into the city. this person is a long many time grassate roos organizer in haiti. >> everything should be done to improve the land and to see how that can be used and that did be kefled. >> reporter: she says she wants to make sure the tougher but ultimately more promising area of agricultural development doesn't get sidelined in favor of quick-fix garment jobs. >> it could be important for the international community and the government to negotiate or to give more priority

to more sustainable job creation. >> reporter: even that urban factory work offers little more than a subsist ens living. the minimum wage here was just raised to $3 a day. that's still less than half what similar jobs pay just across the border in dominican republic. but it isn't stopping haitians from lining up for interviews. >> right now the needs are so great here in terms of employment, any employment really. i understand the needs that people see in terms of making sure that workers are treated fairly and compensated fairly. those are part of the provisions that are in the hope bill where haiti has agreed to allow representatives from foreign labor organizations into the factories to make an assessment how these workers are being treated. >> reporter: any development, be it urban or rural, will rely on continued stability. and there are worries. the united nations peace keeping force won't stay here forever. so it's focusing on rehabilitating and expanding haiti's police force.

so one day perhaps soon take its place. it's a tall order to find, vet and educate the 14,000 new officers needed, and there currently aren't enough weapons for them anyway. a recent training exercise focused on protecting the country's political leaders from potential attacks. the exercise highlights fears of political instability here. and tensions have indeed heightened recently. 15 political parties, including that of deposed but still popular former president jean-bertrand aristide were banned from elections coming up next february. >> the election periods in haiti have often been turbulent periods. if we have serious problems with election results that give to, say, potential investors the problem... the perception that haiti is perhaps entering another

period of instability, that will cost haitians dearly, i'm afraid. >> reporter: u.s. ambassador merton says bluntly haiti doesn't have many more chances to get this right. >> we really need them to understand that this may be the last time that they are going to have this level of international community interest and willingness to help out , particularly financially quite honestly. >> reporter: this may be the last time donors are really going to put so much effort into haiti. >> i think so. the situation has become focused. now something needs to be done. >> reporter: it's a race against time for haiti to convince its people and the world that this moment of promise can be made permanent. >> ifill: our fragile state series >> brown: our "fragile states" series is produced in partnership with the bureau for international reporting and the pulitzer center on crisis reporting.

again, the major developments of the day. a federal trial began in san francisco on whether it's constitutional for states to ban gay marriage. senate majority leader harry reid said he's ready to move on after apologizing for racial comments about president obama in 2008. and three more american troops were killed in afghanistan. the newshour is always online. hari sreenivasan, in our newsroom, previews what's there. hari? >> sreenivasan: we look at a new study showing most original reporting in this age of new media comes from old media, especially newspapers. the details come from tom rosenstiel of the project for excellence in journalism. learn more about which health insurance policies qualify as the so-called "cadillac" plans that would be taxed under the senate proposal. see how four foreign policy experts rate president obama's first year in office. and on art beat, watch an interview with terry teachout, author of a new biography on jazz legend louis armstrong. all that and more is on our web site, newshour.pbs.org.

gwen? >> ifill: and that's the newshour for tonight. i'm gwen ifill. >> brown: and i'm jeffrey brown. we'll see you online, and again here tomorrow evening. thank you, and good night. major funding for the pbs newshour is provided by: >> chevron. this is the power of human energy.

the national science foundation. supporting education and research across all fields of science and engineering. and with the ongoing support of these institutions and foundations. and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. captioning sponsored by macneil/lehrer productions captioned by media access group at wgbh access.wgbh.org