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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, March 06, 2006

The Media Firewall

How the Compartmentalization of News Coverage Stifles Political Accountability

By Anonymous Liberal

One of the more puzzling (and at times infuriating) phenomena that I've observed as a consumer of news coverage over the years is the tendency of the media to compartmentalize political stories. Stories that, in reality, are deeply interconnected are often presented as if they had nothing to do with one another and are covered on entirely separate tracks. Analysis is cabined off and facts are presented in a contextual vacuum. It's not clear why this happens.

Perhaps reporters don't want to confuse readers by repeatedly referring to another story. Perhaps they don't want to stray too far from their mandate and step on the toes of their colleagues who are covering those others stories. Or perhaps they're just lazy and haven't done enough research to understand how the issue they're covering fits into the overall picture. Whatever it is, the natural consequence of this phenomenon is that politicians are able get away with making statements and arguments in one context than are entirely inconsistent with the statements and arguments they are simultaneously making in another.

There is no better example of this phenomenon at work than the media's recent coverage of the NSA warrantless surveillance controversy and the simultaneous push on Capitol Hill to renew the Patriot Act. Both of these stories have garnered a significant amount of press coverage over the last few months, but, for the most part, the media has elected to treat them as if they have nothing to do with one another.

This bizarre media firewall has been so effective that I suspect very few Americans even realize what the Patriot Act is, i.e., a collection of amendments to other statutes, the most significant of which is the Foreign Intelligence Surveillance Act (FISA). The primary purpose of the Patriot Act was to modernize FISA, the same statute that the President now claims is an out-dated relic which he has the power to disregard whenever he deems it "necessary."

Last week, the Senate voted to reauthorize the Patriot Act, and that vote was given prominent coverage in both the New York Times and the Washington Post. But neither paper saw fit to mention that the Patriot Act and FISA are essentially the same thing. The Times even quoted President Bush saying the following:

"The Patriot Act is vital to the war on terrorand defending our citizens against a ruthlessenemy," the president said in a statement from India. "This bill will allow our law enforcement officials to continue to use thesame tools against terrorists that are already used against drug dealers and other criminals, while safeguarding the civil liberties of the American people."

The Post carried part of the same quote and added that "[r]enewing the act, Bush and congressional Republicans said, was key to preventing more terror attacks in the United States."

These statements--while unremarkable in a universe where the president isn't openly flaunting this very law--are entirely incoherent in the universe we actually inhabit, where the president has admitted that his administration is currently engaged in the very type of surveillance that FISA explicitly criminalizes. After all, if some combination of the AUMF and Article II bestow the president with the power to disregard FISA--as the administration and its defenders claim--then, by definition, the amendments to FISA contained in the Patriot Act are clearly not "vital to the war on terror." Indeed, they're entirely superfluous.

Similarly, it makes absolutely no sense to say that the Patriot Act/FISA "safeguard[s] the civil liberties of the American people" when the administration is claiming that it is not bound by FISA's provisions. Because both the Post and the Times insist on covering the Patriot Act renewal and the NSA controversy as if they were totally unrelated stories, both papers simply present Bush's incoherent statements without further comment.

And it gets worse. Though you wouldn't know it by following the coverage in the national media, the President himself has made a number of public statements which are not at all consistent with his current position regarding the effectiveness and application of FISA. In late January, over a month after the NSA controversy surfaced, Glenn was the first to point out that in 2002 the Bush administration publicly opposed an amendment to FISA that would have brought the law closer in line with the surveillance activities the administration was already conducting; the administration argued then that FISA was working fine and that the proposed amendment might be unconstitutional. Although Glenn's discovery spawned a few mainstream media stories, it hasn't even come close to garnering the level of coverage it deserves.

But Glenn's discovery led me to wonder what other inconsistent statements the national media had failed to unearth. It didn't take me long to find some real doozies. For instance, with all the talk of signing statements, it apparently never occurred to anyone at the major news organizations to look up what President Bush said when he signed the Patriot Act into law in 2001. Sure enough, it wasn't at all consistent with what he's saying now. Here's a small portion of what he said:

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law [FISA] was written in the era of rotary telephones. This new law I sign today [which amends FISA] will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology.

The following weekend, the President delivered his weekly radio address and again discussed the amendments to FISA he'd just signed into law. This time he observed:

The new law[which amends FISA] recognizes the realities and dangers posed by the modern terrorist. . .

Under the new law officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

Bush ended the radio address by making the following pledge:

These measures were enacted with broad support in both parties. They reflect a firm resolve to uphold and respect the civil liberties guaranteed by the Constitution, while dealing swiftly and severely with terrorists. Now comes the duty of carrying them out. And I can assure all Americans that these important new statutes will be enforced to the full.

As we know now, Bush didn't take his pledge very seriously. If his administration wasn't already violating FISA at the time he made these remarks, it began to shortly thereafter. So much for enforcing these new statutes to the full. To my knowledge, however, Bush has never been questioned about any of these statements, and no major media outlet has printed them (at least since the scandal broke).

I'm sure that part of the problem is that reporters are more concerned with cultivating inside sources and securing exclusive scoops than exploring the public record. But it's more than that. As this week's stories on the Patriot Act demonstrate, the news media just cannot seem to connect the dots. The Patriot Act and the President's statements about the Patriot Act are one story, and the NSA controversy is another.

Of course, the national media isn't solely to blame here. Bush's critics, particularly his Democratic critics, have failed miserably to highlight this connection for journalists. The debate over the renewal of the Patriot Act gave them the perfect opportunity and platform to explain to the public just how radical and incoherent the administration's legal theories really are. But, for reasons I cannot begin to fathom, the Democrats have for the most part chosen to play along in this bizarre game.

The debate over the renewal of the Patriot Act has largely played out much as one would have expected had the NSA program never been exposed, with all sides acting as if the law that results from their deliberations will actually define the limits of the government's power. It's as if no one in Congress has truly internalized the implications of the Bush administration's legal theories; no one has really come to grips with the reality that, under those theories, the rules Congress constructs are mere guidelines which may be disregarded at the discretion of the president. No one seems to be asking the obvious question: what's the point? Why spend so much time fine-tuning a law that the President has no intention of following?

If there's a silver lining to be found here, it's that this issue highlights the unique and valuable role that blogs can play in our political discourse. Bloggers are avid consumers of news. They excel at taking bits of information from various news sources and public records and weaving them together into a narrative. It's not at all surprising to me that a blogger (Glenn) was the first to draw the connection between the 2002 DeWine legislation and the current NSA controversy or that blogs like Think Progress are often the first to point out when a politician's current statements are contradicted by prior public statements.

By bridging the artificial media firewall between inter-related stories and constantly sifting through the public record, bloggers play an indispensable role in educating the public and holding politicians and government officials accountable. It would be preferable, of course, if bloggers weren't so often alone in this endeavor, if the national media did a better job of drawing these connections on its own. But as the aftermath of Glenn's DeWine story demonstrated, journalists are becoming more receptive to pursuing stories first highlighted by bloggers (and even crediting bloggers for their work).

This trend is encouraging, and it gives me hope that bloggers can help to de-compartmentalize the news, and by doing so, at least force politicians to adopt consistent talking points. That would be a small but important step in the right direction.

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