How Not to Cover the Warrantless Surveillance Issue
In the middle of an otherwise encouraging article discussing the (slim) chances of the White House getting the lame duck Senate to pass surveillance legislation, Liz Halloran of U.S News & World Report writes the following infuriating paragraph:
Nonetheless? That's it? Halloran cites the administration's legal position--without pointing out how frivolous it is--and then quotes a guy from the Heritage Foundation making an outright false statement. She then writes "nonetheless" and moves on. That's pathetic.
Ms. Halloran, if you're reading this, it is simply not true that "every president has engaged in the equivalent of warrantless wiretapping and surveillance." Bush is the only president since the passage of FISA to have violated that law; everyone else complied with it by seeking warrants, whether prospectively or within the grace period allowed by the law. The Bush administration's open defiance of FISA is unique.
As a general rule, it's not wise to take claims made by the Heritage Foundation at face value. And if you're going to do that, at least balance it out with a quote from someone who actually knows what they're talking about.
And what about the magazine's editors? Isn't this the kind of thing that should be picked up during the editorial process. Good grief.
The eavesdropping program, launched in secret after the 9/11 attacks, was revealed last December by the New York Times. The newspaper also reported that the government failed to get surveillance warrants from a secret court that monitors domestic spying. During the ensuing uproar, the president defended the program as targeting only domestic communications that originate overseas. His lawyers have argued that the president's executive wartime authority precludes his having to seek surveillance warrants. Says Todd Gaziano, director of the conservative Heritage Foundation's Center for Legal and Judicial Studies: "Every president has engaged in the equivalent of warrantless wiretapping and surveillance-the only difference is that this administration is being far more sensitive to civil liberties."
Nonetheless, some three dozen legal challenges have been filed questioning the program's legality and Bush's wartime powers claim.
Nonetheless? That's it? Halloran cites the administration's legal position--without pointing out how frivolous it is--and then quotes a guy from the Heritage Foundation making an outright false statement. She then writes "nonetheless" and moves on. That's pathetic.
Ms. Halloran, if you're reading this, it is simply not true that "every president has engaged in the equivalent of warrantless wiretapping and surveillance." Bush is the only president since the passage of FISA to have violated that law; everyone else complied with it by seeking warrants, whether prospectively or within the grace period allowed by the law. The Bush administration's open defiance of FISA is unique.
As a general rule, it's not wise to take claims made by the Heritage Foundation at face value. And if you're going to do that, at least balance it out with a quote from someone who actually knows what they're talking about.
And what about the magazine's editors? Isn't this the kind of thing that should be picked up during the editorial process. Good grief.
6 Comments:
Hear, hear. A great post as usual. The coverage in the press of the NSA violating FISA is really spectacularly weak. Seemingly every article I have read that touches on the controversy (including the one you cite) is either outright inaccurate or at least highly misleading.
Here's another example, this time from the Washington Post. It contained a straightforward error so I wrote to complain. To their credit, they promptly published a correction adding the word "warrantless"; less than I would have hoped for, but still something.
Here's the email I sent:
In her article "Feingold Won't Seek Democratic Nomination in 2008", Judy Sarasohn refers to Feingold's "opposition to administration wiretapping". However, it is simply not true that Feingold is opposed to wiretapping by the administration. What he is opposed to is wiretapping that was done and is still being done without court oversight required by FISA. Of course, like everyone of any prominence, he wants the administration to wiretap conversations of suspected terrorists. The question is whether wiretapping should be done in clear compliance with applicable law and respecting the principle of separation of powers, or whether it should be done in a fashion requiring aggressive legal interpretations and asserting unilateral powers on behalf of the executive.
By the way, in case there is any confusion that "administration" can be read as "warrantless" here, please note that the administration also does some wiretapping in compliance with FISA (and therefore to which Feingold would obviously not object). Indeed before the NSA scandal broke, the President publicly insisted that all wiretapping was being done under FISA warrant (see e.g. this April, 2004 speech by the president).
I would be grateful if you would either publish a correction or explain to me why you do not believe one is warranted.
And this sentence
"His lawyers have argued that the president's executive wartime authority precludes his having to seek surveillance warrants."
would be less risible if FISA didn't explicitly provide for wartime (there are different provisions, in particular the time period for retroactive warrants). Then again, perhaps it is a (mangled) reference to the AUMF not to a purported generic wartime authority (leaving aside the technical legal question of whether we are at war), but of course as you (AL) rightly explained the AUMF argument is risible also post Hamdan if not before.
Would you accept the post of Attorney General if ever offered AL?
Just sayin' is all. Id feel a lot more comfortable with that.
Judge Rejects Request for NSA Documents
http://abcnews.go.com/Politics/T...tory? id=2669018
The money quote from U.S. Judge Ellen Segal Huvelle: "even if the program is ultimately determined to be illegal, it doesn't change the fact that the materials are classified and are not covered by the Freedom of Information Act."
From the widely-circulated AP article concerning Gonzales' comments in Colorado last week:
"The administration has maintained that its warrantless surveillance program focuses on international calls involving suspected terrorists, and dismisses charges that it is illegal because it bypasses federal law requiring a judge-issued warrant for such eavesdropping."
They don't violate the law; they just "bypass" it, which is different because it's a completely different word!
Their position is truly stunning: a general grant of power, passed hastily in 9-11's wake, in the AUMF trumps a specific statute and the Constitution itself.
Few people seem to have noticed, however, and with words like "bypass" used to describe the President's radical position, and with Heritage Foundation talking points being reported as news, it's no wonder.
Here is news November 18, 2006 of a case management meeting completed with Judge Walker in the Hepting matter. The federal court scheduling office consolidated a batch of cases and sent it to Judge Walker several months ago, though there remain a few other cases in courts elsewhere. Walker had received a government request to cancel hearing the Hepting case while an appeal is calendared, but Walker decided last week to proceed; although the process has two more case management meetings with Walker in the next two months. See the link for details.
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