SENATE JUDICIARY Committee Chairman Arlen Specter (R-Pa.) has cast his agreement with the White House on legislation concerning the National Security Agency's warrantless surveillance as a compromise -- one in which President Bush accepts judicial review of the program. It isn't a compromise, except quite dramatically on the senator's part. Mr. Specter's bill began as a flawed but well-intentioned effort to get the program in front of the courts, but it has been turned into a green light for domestic spying. It must not pass. . . .
This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power. Mr. Specter has not been briefed on the NSA's program. Yet he's proposing revolutionary changes to the very fiber of the law of domestic surveillance -- changes not advocated by key legislators who have detailed knowledge of the program. This week a remarkable congressional debate began on how terrorists should face trial, with Congress finally asserting its role in reining in overbroad assertions of presidential power. What a tragedy it would be if at the same time, it acceded to those powers on the fundamental rights of Americans.
It wasn't just the Post which fundamentally misled its readers about this bill. So, too, did Eric Lichtblau in his article in The New York Times ("The proposed legislation represents a middle-ground approach among the myriad proposals in Congress for dealing with the wiretapping controversy"). But in the department of factually false stories, both the NYT and the Post were completely outdone by this indescribably ridiculous Time Magazine article (h/t A.L.), which depicts Arlen Specter as a crusading warrior who resolutely refused to back down and who thereby forced the White House to accede to his demands (his "demands" apparently being that the White House allow him to write a law that would render the President's illegal eavesdropping program legal, and which would remove any and all Congressional limitations in the future on the President's power to eavesdrop on Americans -- boy, that Specter drives a hard bargain).
By contrast, conservative bloggers and liberal bloggers alike immediately recognized that the Specter bill is a complete capitulation to the Bush administration, something which gives the White House everything it could possibly want and more. And yet journalists who write for the nation's most influential newspapers and magazines reported the bill as being the opposite of what it really is, and in the process, completely skewed the public debate over this critically important matter -- perhaps irreversibly -- by hopelessly clouding the real issues it raises.
I'm not one of those who believe that blogs have replaced or can replace major journalistic outlets for the gathering of news. The vast resources of those organizations are still necessary for news gathering. But when it comes to understanding, analyzing and interpreting political and world events, there is very little competition, in my view, between the blogosphere and traditional media outlets. Most celebrated journalists yesterday were spewing the plainly false view that the Specter bill constituted a capitulation by the White House, while bloggers immediately recognized that the opposite was true.
That is why, with rare exception, if I read only blogs but no established media outlets for news analysis, I feel I would be missing nothing. But if I read only established media outlets but no blogs, I would feel that I was operating in the dark.
A reader of this blog sent an e-mail yesterday to the Post's Charles Babington pointing out the grossly misleading nature of his article, and Babington petulantly replied as follows:
From: Chuck Babington <xxxxxxxx@washpost.com>
To: XXXXXX <xxxxxxx@mac.com>
Date: Fri Jul 14, 2006 10:48:26 AM CDT
Subject: Re: Message via washingtonpost.com: Specter Bill
I read the bill. Can you cite a single inaccuracy? Here's my guess: You read neither the bill nor the entire story.
That's how Babington -- after writing a story which conveyed the opposite of reality -- responded to a reader who complained. He condescendingly accused the reader of not having read the bill and/or the article. I was going to e-mail Babington today to highlight for him the patent inaccuracies in his article, but his own newspaper's Editorial Page today already did so.
Our democracy relies upon the media to inform Americans as to what their Government is doing, most particularly to inform them of inaccuracies in claims made by political officials. When, instead, journalists are manipulated by self-interested politicians into conveying fantasy and propaganda rather than reality ("the White House makes major compromises on eavesdropping!"), the damage to our democracy's ability to have meaningful public debates really is immeasurable.
Lazy and egotistical are not a good commbination of character traits for anyone to possess but certainly not for a journalist who works for a widely read paper reporting on such important things as a fundamental shift in power made in a backroom deal.
ReplyDeleteGoogle provides this email for babbington. I would suggest he get a few email links to this column.
ReplyDeletechuck.babbington@washingtonpost.com
I do believe that this is somewhat different from posting his home address etc. :-}
Gee, misleading people either out of stupidity or some bizarre, misplaced sense of loyalty to the Administration? That’s weird…
ReplyDeleteI'll say it again - this is no accident, not a 'mistake' attributable to laziness, incompetence, or stupidity. Bring back the Fairness Doctrine!
ReplyDeleteOf course, the obvious question is why these large (hint, hint) media outlets behave so badly.
errr.
ReplyDeleteI guess it is:
chuck.babington@washingtonpost.com
my apologies, Chuck!
Scent of Violets said...
ReplyDeleteBring back the Fairness Doctrine!
Without entering into a discussion regarding the merits of the Fairness Doctrine, it should be pointed out that it only covered broadcast media...these newspapers wouldn't have been covered by it.
Specter's "compromise" should really come as no surprise. His bill as originally presented, before all this "torturous" negotiation, always included the line referring the president's contitutional authority. The joke is that with all that lead time Babington and others still can't see it.
ReplyDeleteScent of Violets:
ReplyDeleteYou and many have been calling for a resurrection of the Fairness Doctrine in response to the media stupidity Glenn has been documenting. The FD was never applicable to newspapers, and seldom to national television news outlets. Mostly it was applied to radio, which the SCOTUS in the 60s justified against a 1st Am challenge due to the limited availability of the broadcast spectrum.
When the FCC revoked the Fairness Doctrine in the 1980s, it did so touting testimony given by Dan Rather, to wit:
When I was a young reporter, I worked briefly for wire services, small radio stations, and newspapers, and I finally settled into a job at a large radio station owned by the Houston Chronicle. Almost immediately on starting work in that station's newsroom, I became aware of a concern which I had previously barely known existed--the FCC. The journalists at The Chronicle did not worry about it; those at the radio station did. Not only the station manager but the newspeople as well were very much aware of this government presence looking over their shoulders. I can recall newsroom conversations about what the FCC implications of broadcasting a particular report would be. Once a newsperson has to stop and consider what a government agency will think of something he or she wants to put on the air, an invaluable element of freedom has been lost.
With the huge explosion of cable, the Internet, and the increasing irrelevancy of the limitations of traditional radio spectrum, government monitoring of "fairness" is unnecessary, and was always dangerous.
I've come to loathe Fox News as much if not more than anyone reading here. But the answer is not sending in the govt (the Bush-run FCC?) to "fix" the problem. (I know some think the purported "consolidation of ownership" issue justifies the Fairness Doctrine; I don't.)
This medium to which we are all posting comments is the answer, as is the huge diversity of cable programming, as well as Internet radio, podcasting & etc...all of which will be melding in a symbiotic dance over the next decade.
Leave the heavy hand of the state out of that process.
The mainstream media doesn't exist to report on the status quo -- it's part of the status quo. They can't be shamed into doing their job -- they ARE doing their job, to spread wet propaganda over citizens' objections and outrage.
ReplyDeleteI just thought this week that, in the Wizard of Oz metaphor, the media isn't the little dog pulling aside the curtain hiding the great Oz -- the media is the curtain.
Mudduck
Queens, NYC
ej,
ReplyDeleteIt may be fair to say (though I have not read Scalia's entire dissent and may have this wrong) that Scalia would give signing statements the same legal significance he gives to all other legislative history: none.
Seems he was just playing "gotcha" with those justices that did employ legislative history as an interpretive tool, saying, "Why not look at the President's signing statement too?"
Again, could be wrong, haven't read the whole dissent.
I had an extended e-mail exchange with Babington early in the Bush Administration on the Social Security Trust Fund and on the effects of Bush's tax cuts on the deficit. I won't bore you with the he-said/he-said but suffice it to say that I was shocked when Babington revealed himself to be an idiot who who was unresponsive to counterevidence.
ReplyDeleteIf we had the same exchange today, I wouldn't be shocked because I would merely recognize it as typical of journalists today who combine limited knowledge and analytical ability with unlimited arrogance.
It makes sense when you think about it. Most journalists have no particular expertise in any field. Of course, we can't expect journalists to be experts in every field, but the fact that they don't have any real expertise in even one field means that they lack the intellectual experience that might enable them to disentangle sophisticated misinformation.
When the news broke of this "comprimise" gutting of FISA the first place I came was here. And, what did I find? A thorough analysis of the bill itself and not the bleatings of Bush supporters one would find as attributes in our major media outlets. (except in the comments *cough*)
ReplyDeleteThanks for that Glenn.
OK, I'll bet any takers that these infamous lawyers at our prestigious Department of Justice are the ones that wrote this FISA "comprimise".
When scanning the bill for differences between it and FISA it was obvious that is what was done. They had a team of justice lawyers who are responsible for this crazy "unitary" executive theory use FISA a way to interepret this theory and then put that theory in practice by editing the law to suit their belief system.
I also bet that they gained valuable experience before this re-write of FISA by writing bills for congress. You know, the lobbyist lawyers that now write our legislation and our rubber stamp congress then sends to the president without actually reading the bill.
ARRRRGH!!
keep in mind, you're talking about reporters, not editorialists.
ReplyDeletei don't think lichtblau's articles were so wrong. in the july 14 article, he was saying that previously, the administration maintained that they had the legal right to eavesdrop and didn't need congressional or judicial approval. the compromise is that now they admit to needing congressional or judicial approval. it is a huge compromise to realize they can't operate unilaterally and have to ask congress for the terms, especially since the terms aren't worked out (people, the arlen bill will not pass unmodified). now, i don't agree that the bill represents the "middle ground" of what the president is doing and what should be done, but he doesn't say that. read the article: he reports that the bill is the
"middle-ground approach among the myriad proposals in Congress" which i fear is probably true.
furthermore, today's nyt article (also by lichtblau) seems to be reporting that the bill has opponents and describes some of the criticism.
please distinguish reporting from editorializing.
keep in mind, you're talking about reporters, not editorialists.
ReplyDeleteClearly. And reporters who describe a bill in which only one side makes concessions as a "compromise" are failing in their duties.
the compromise is that now they admit to needing congressional or judicial approval.
They're admitting nothing of the sort. They haven't admitted that they are not able to continue to eavesdrop in defiance of FISA. Obviously, the continue to maintain that they can, otherwise they would be admitting to criminal conduct.
The Specter bill furnishes two ways to eavesdrop - (1) through compliance with FISA or (2) by ignoring FISA completely and eavesdroping in accordance with the President's unlimited constitutional authority to eavesdrop.
The President was already doing activity (2), but in violation of the law. Specter's bill says he continue to do activity (2), but now it's perfectly legal. The President has given up nothing and gained everything. And, contrary to your central claim, he did not acknowledge that he lacked the authority to do activity (2) without Congressional approval. Where is this so-called "admission"?
That is not a "compromise" in any sense of the word, and since the first duty of reporters is to describe with factual accuracy what has occurred, describing it in that way is a profound failure of their duty.
Glenn wrote:
ReplyDeleteThe President was already doing activity (2), but in violation of the law. Specter's bill says he continue to do activity (2), but now it's perfectly legal. The President has given up nothing and gained everything. And, contrary to your central claim, he did not acknowledge that he lacked the authority to do activity (2) without Congressional approval. Where is this so-called "admission"?
I really think it is noteworthy, and a compromise, to ask congress to bless activity (2) rather than continue doing activity (2) without any law making it legal whatsoever. Why is that hard to understand? Believe me, the program is repugnant, but there is a shift in the administration's position that is noteworthy and ought to be easy to understand. Asking to have activiy (2) permitted by congress is not the same as insisting that congress has no power to stop activity (2).
The position of the administration that they do not need any laws to govern their activities is now compromised. Now that it has been admitted, there is no going back. Keep in mind that the specter bill will not pass, but the admission that congress has the power to permit warrentless eavesdropping has already been made, along with the presumption that they have the power to forbid it as well.
Yass--
ReplyDeleteBelieve me, the program is repugnant, but there is a shift in the administration's position that is noteworthy and ought to be easy to understand. Asking to have activiy (2) permitted by congress is not the same as insisting that congress has no power to stop activity (2).
Actually, it seems more likely that the Specter legislation will be viewed (and certainly will be spun by the Administration) as doing the precise opposite. The Admin has been arguing until blue in the face that, to the extent that FISA makes its procedures the exclusive means of performing foreign intelligence electronic surveillance (which its text plainly does), it unconstitutionally impedes the President's Article II power to prosecute war.
By expressly omitting FISA's exclusivity provision and including a self-conscious reference that FISA shall not be construed as limiting presidential power, the Specter bill would send a giant, strobing signal to the public and the government that Congress' own sense of the issue is that FISA had previously unconstitutionally impeded the President's surveillance power.
This legislative signal is in all likelihood not enough to change a court's understanding of FISA's constitutionality before the Specter amendment, but it does in fact surrender to and endorse the Administration's vast and radical theories of presidential power, putting the voice of not just one but two of the three branches in apparent agreement that this is what Article II means.
Again, while this might not necessarily have any significant effect on a court's understanding of the Constitution, it sounds a blaring horn of approval of the Administration's theories, and as such represents a profound capitulation and surrender to continued executive expansion.
I'm with Glenn, Specter's legislation gives away the farm and compromises in absolutely no meaningful way.
One thing I really don't understand is how it's even *possible* to make a law that refuses any future lawsuits about the wiretapping program. OR about the Guantanamo detainees either.
ReplyDeleteHow can that be done? How is it legal?
It seems like that goes a long way toward removing the possibility of redress for grievances that's guaranteed in the Constitution.
Jeff
I really think it is noteworthy, and a compromise, to ask congress to bless activity (2)
ReplyDeleteWait, when did anyone in the administration ask Congress to do this? I was under the impression that Specter and others independently decided to draft their own legislation.
First, excellent post again Glenn.
ReplyDeleteSecond, We are being set up.
"It isn't a compromise, except quite dramatically on the senator's part."
From DK at Talking Points Memo
"And so it is that many Democrats are unprepared to face an adversary who has a fallback position situated just inches behind the frontline, and a fallback position just inches behind that, and so on indefinitely."
The Washington Post editorial is also a fallback position. From the editorial:
Mr. Specter's bill began as a flawed but well-intentioned effort to get the program in front of the courts, but it has been turned into a green light for domestic spying.
From the beginning, Specter's bill was designed to legalize the President's program and limit any judicial intervention to the secret FISA court.
Despite Specter's protestations, continuing today, that he has never been briefed on the program, his bills have always been detailed and sweeping changed to FISA.
The bill would, indeed, get the NSA's program in front of judges, in one of two ways.
OK, let's count them.
It would transfer lawsuits challenging the program from courts around the country to the super-secret court system that typically handles wiretap applications in national security cases.
So, cases currently in front of judges will be yanked out of the current system and buried in a secret court that does not even have to publicly issue rulings.
Does this "get the NSA's program in front of judges?" Nope. Already in front of judges. Current status quo, but worse.
It would also permit -- but not require -- the administration to seek approval from this court system, created by the Foreign Intelligence Surveillance Act, for entire surveillance programs, thereby allowing judges to assess their legality.
Does the granting of permission that never needed granting "get the NSA's program in front of judges?" Nope. Bush has always had the option to follow this course. Current status quo.
But the cost of this judicial review would be ever so high.
Yes, a price must be paid for our sacrifices.
The "compromise" bill would add to FISA: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers."
Long before Cheney and Yoo took their Sharpies to Specter's bill, it's language already legalized the president's surveillance program. Bush's final relenting on this language will be his sacrifice, and the narration of Specter vs Cheney will be the perfect Hollywood ending to a script written long ago. There will be many smiles and handshakes.
Maybe I am just an optimist. Maybe the bill will pass unchanged.
I really think it is noteworthy, and a compromise, to ask congress to bless activity (2) rather than continue doing activity (2) without any law making it legal whatsoever.
ReplyDeleteThey didn't ask for Congress to bless what they're doing. Specter begged to be allowed to pass a law making what they were doing legal. And the WH finally allowed him to.
Here's an analogy: I break into your house and steal 10 of your paintings. You tell me to give them back and I refuse. You say: "Well, at least let me transfer the deeds to the paintings to your name, so that the deeds at least reflect the new owner," and I say: " No need. I don't care what the deeds say. I'm keeping the paintings anyway because they are mine."
You beg for the next two months to transfer the deeds into my name, and I finally say that you can. Have I "compromised"?
The position of the administration that they do not need any laws to govern their activities is now compromised. Now that it has been admitted, there is no going back.
You keep saying this, but I asked you where the administration "admitted"that it needed Congress' authority to eavesdrop, and you ignored the question. That's because it never did admit that. Just because it allows Congress to pass a law "blessing" what they're doing does not mean - as you falsely imply - that they are admitted that they need the blessing. They have done nothing of the sort.
OK, good post.
ReplyDeleteYass beat me to it, but the Saturday Lichtblau does headline the skeptics and critics:
Wiretapping Review Is Criticized
By ERIC LICHTBLAU
WASHINGTON, July 14 — Critics of the Bush administration’s program for wiretapping without warrants said Friday that they would fight a new White House agreement to let a secret court decide the constitutionality of the operation, and the compromise plan failed to deter lawmakers from offering up competing proposals of their own.
[Skip to para twelve]
Civil rights advocates attacked the Specter plan in even stronger terms.
“Senator Specter has sold out his committee by caving to everything the White House requested to continue illegal, warrantless spying on American citizens,” Shayana Kadidal, a lawyer with the Center for Constitutional Rights in New York, which is suing the government over the N.S.A. program, said Friday. “This is not a compromise. It is a sellout.”
Civil rights groups and privacy advocates said they were concerned not only that the secret intelligence court would rule on the constitutionality of the security agency’s program, but also by the fact that Mr. Specter’s proposal would consolidate all the legal challenges to the program now pending in federal courts around the country and allow the intelligence court to hear all those challenges. The Electronic Frontier Foundation, which is suing the government in federal court in California over the wiretapping program, called the proposal “a rubber stamp” for spying programs.
Why did it take a day to find the critics? Who knows?
Tom Maguire
Glenn
ReplyDeleteI'm sure I'm missing something, but how is it that if the administration claims never to have needed this bill and, in fact, didn't want it, can they also support the spin that they've made a major compromise?
Aren't those two positions the opposite of one another?
Or is the compromise the fact that they deigned to let Specter kiss the king's ring?
Specter:
ReplyDelete"Hey, come on you guys, you gotta let me get my name in the history books alongside yours as having been instrumental in blowing up the Bill of Rights...it's my last chance at glory!"
Or is the compromise the fact that they deigned to let Specter kiss the king's ring?
ReplyDeleteIt's this. I am almost to the point where I can't listen to Specter speak anymore, because there is such a creepy and disturbed psychological component to how he thinks that induces cringes that are truly unpleasant.
He is grateful, literally, that they let him pass a bill at all. He feels like he received royal dispensation to be able to bestow legality to what they have been doing for the last 5 years, and he couldn't be any more honored and pleased by this privilege. In his mind, he "won" the "concession" that, at first, the President didn't care if Congress legalized his criminal conduct, and then at the end, he allowed them to.
See the analogy I drew above (a few comments above) about the paintings. To make it fully applicable to Specter, add this sentence to it: "After I finally allow you to transfer the deeds to your paintings to my name, you announce how grateful you are that I allowed you to do so."
That's Arlen Specter, wallowing in his most preferred place of deep debasement.
I take issue with your characterization of the WaPo editorial page as "moderate-to-conservative". I understand that doing so dovetails with your claim that a majority of Americans support your positions, but then decrying the "politicians" for slanting the facts when communicating with their constituents is just the pot calling the kettle black.
ReplyDeleteI take issue with your characterization of the WaPo editorial page as "moderate-to-conservative".
ReplyDeleteThis is a conclusory argument devoid of any rationale. What makes the description inaccurate?
Tom,
ReplyDeleteEven the newer Lichtbau article doesn't focus on the *right* criticisms. It misses the point. And it continues to portray the optional program-wide judicial review as if it is something meaningful, or some sort of concession.
The bottomline is that there is nothing whatsoever in this bill that can fairly be called a concession. It completely does away with almost three decades of surveillance law, putting us instantly back into the pre-FISA era of unlimited and unreviewable exective branch discretion. This bill is David Addington's wet dream. Not only does it give the president all the authority he could possibly want, but it concedes (wrongly) that he was right to have disregarded the law for the last five years, that he had the authority to do so all along. That sets an incredibly damaging precedent. It amounts to Congress misstating the extent of its own constitutional authority.
It is very interesting to see the "Specter as compromised defender" meme even persists here:
ReplyDelete“Senator Specter has sold out his committee by caving to everything the White House requested to continue illegal, warrantless spying on American citizens,” Shayana Kadidal, a lawyer with the Center for Constitutional Rights in New York, which is suing the government over the N.S.A. program, said Friday. “This is not a compromise. It is a sellout.”
I've been corresponding with Senator Feinstein on the NSA wiretap since last year, and I got a letter from her on July 12 saying she's a cosponsor of the Specter bill, and that she thinks it's good enough.
ReplyDeleteBleagh.
Glenn,
ReplyDeleteHow is it possible to put wording in a law that makes it impossible for citizens to bring lawsuits about the government's actions? Doesn't this contradict the right to redress for grievances in the Constitution?
Jeff
Jao:
ReplyDeleteYou're right: it is 3001. The timing is very poor. When she (or her office) writes on July 12 that she has "introduced legislation, with Senator Specter, so that all content collection for foreign intelligence purposes is conducted within the FISA framework", it looks a lot like it's timed to coincide with Specter's revised bill and claim some credit for it.
As a science writer, I rely on my sources to deal with me honestly. It would be literally impossible for me to know if they were lying about a certain level of gene expression or protein interactions without doing the experiments myself--which I'm not trained to do.
ReplyDeleteSo am I stuck believing any old line that sources feed me? Not at all. The remedy? Other sources! People qualified to comment on the assertions, and more than happy to challenge them.
Very few reporters are trained lawyers or economists or historians or scientists. That's why the level of analysis on blogs is so much higher. Because people like Glenn and Duncan Black and Christy Smith are better educated than most reporters and have both the analytical skills and comprehensive understanding of law, economics etc. to see through the "lies, damn lies, and statistics" fed to them by their sources.
That said, qualities that distinguish good reporters from bad ones are an ingrained skepticism, lack of credulity and bone deep anti-authoritarian impulses that compel them to doubt the veracity of sources, to compulsively fact check everything, and to interview a range of sources on each issue (the much maligned "objectivity" standard).
A fact just isn't true (and shouldn't be reported) unless you get confirmation from three people. And not three people who are all working from the same set of talking points. The same is true of analysis of something like the Specter bill.
I don't think the problem here is bias--it's insufficiently broad (and deep) reporting.
Glenn: "That's how Babington -- after writing a story which conveyed the opposite of reality -- responded to a reader who complained. He condescendingly accused the reader of not having read the bill and/or the article."
ReplyDeleteNot impressed, Glenn. You've done the same in re Hamdan. Despite your litigation background in Securities and First Amendment, you show an inclination to narrowly read things. When others point out things, you accuse them of not reading the document.
If you're going to whine about what others are or are not doing, then don't engage in that sort of phony attack yourself.