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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, September 04, 2006

This week's FISA debate -- 2 falsehoods that cannot be responsibly reported

It is now undeniably clear to everyone that the sole hope Bush supporters have for staving off disaster in the midterm elections is to (a) hype the terrorist threat as shrilly and irresponsibly as possible and then (b) depict Democrats as weak appeasers of The Terrorists whose cowardly refusal to fight them will endanger everyone. One of the principal instruments they intend to use to accomplish that goal begins this week -- with consideration of the bill proposed by Arlen Specter (and a similar one introduced in the House by Rep. Heather Wilson), which would "amend" FISA by making it optional (rather than mandatory) for the President to comply with it, thereby removing all limitations on his power to eavesdrop on the conversations of Americans.

As Bill Frist and others have made abundantly clear, the Specter bill will serve as one of the Republicans' principal political weapons for depicting Democrats as weak on terrorism. The argument, of course, will be that Republicans want to listen in when Osama bin Laden calls and Democrats don't, as evidenced by their opposition to the Specter bill, and that Democrats therefore oppose a surveillance program which most Americans support. Put another way, the Republicans will attempt to exploit this debate by advancing two factually false claims:

Falsehood # 1: the debate is about whether the President can eavesdrop on Al Qaeda and other terrorists;

Falsehood # 2: "most Americans" support warrantless eavesdropping.

Whether Republicans get away with these two factually false claims depends on whether journalists do their jobs by pointing out that these claims are false (not unpersuasive, but false).

So far, we're off to a very bad start. Here is what Jonathan Weisman "reported" in The Washington Post last week about the upcoming FISA debate (h/t Ivan Carter):

A bill to clarify the legality of the NSA's wiretapping without court warrants will also force Democrats to choose between a liberal base that believes the program is an unconstitutional breach of civil rights and a majority of Americans who back the effort.

It is honestly difficult to even write about this paragraph, because it is so filled with error and myth, and it is just unfathomable that, nine months into the NSA scandal, we still have read statements like this presented as factual reporting by The Washington Post. That single paragraph is packed with misconceptions, but the most significant one is the claim that "a majority of Americans" -- in contrast to the Democrats' "liberal base" -- "back" warrantless eavesdropping.

How does the Post reconcile this statement with this fact, reported on August 17 by CNN:

Opinion polls suggest the U.S. public has been divided on the NSA program. A CNN poll conducted by Opinion Research Corp. on May 16-17 found that 50 percent of the respondents believe the program was "wrong," while 44 percent believe it was "right."

Or with this poll ("voters say 55 - 42 percent that the government should get court orders for this surveillance"), or with this one ("47 percent said [warrantless eavesdropping] was right and 50 percent called it wrong"), or with this one ("49 percent of respondents said the president had definitely or probably broken the law by authorizing the wiretaps and 47 percent said he probably or definitely had not"), or with this one (pluralities in 37 out of 50 states believe it is "clear that Bush broke the law"), or with this one ("A majority of voters want Congress to 'demand that the warrantless eavesdropping be stopped because it is illegal'”). And all of that was before a federal judge ruled that warrantless eavesdropping violates both the criminal law and the U.S. Constitution.

If Jonathan Weisman and the Post like warrantless eavesdropping, they can say so. But there is no excuse for depicting the NSA program as some sort of widely popular program which has the backing of "a majority of Americans" and is opposed only by the Democrats' "liberal base." That is not reporting. That is factually false political propaganda straight from the mouth of Karl Rove and Ken Melhman. The opposite is true -- at best, polls show that Americans are evenly divided, but most polls have shown since the beginning of the NSA scandal that most Americans want aggressive eavesdropping on Al Qaeda but oppose warrantless eavesdropping. Whatever can be done to drum this simple, clear fact into the heads of journalists who write or speak about this story should be done.

Then there is this article from Mark Knoller of CBS News (h/t The Octillion), "reporting" on the administration's reaction to Judge Taylor's ruling that the warrantless eavesdropping program is illegal:

"I would say that those who herald this decision simply do not understand the nature of the world in which we live. I strongly disagree with this decision," [President Bush] told reporters at the presidential retreat in Camp David. "We strongly believe it's constitutional and if al Qaeda is calling into the United States we want to know why they're calling," he said.

It is journalistically inexcusable for the media to pass along this "argument" without immediately pointing out that it is false -- not unpersuasive, not just misleading, but completely false.

If I had one wish, it would be for journalists everywhere to ingest this one extremely simple, undeniable fact -- FISA, as written, allows the President to "listen in when Osama bin Laden is calling." Under the law as it has existed for 28 years, "if al Qaeda is calling into the United States [the President can] know why they're calling." The "Terrorist Surveillance Program" doesn't give the President the power to listen in on those calls because he already has that power under FISA.

The difference between FISA and the warrantless eavesdropping program is not about whether the President can eavesdrop on terrorists. He can eavesdrop on all of the terrorists he wants under FISA as it is written. What is being debated -- the only difference -- is whether he should be able to eavesdrop on the conversations of Americans with judicial oversight (as all Presidents have done for the last 30 years) or whether he can eavesdrop on Americans in secret, without oversight (which led to severe abuses of the eavesdropping powers in the four decades prior to FISA). That is what is being decided, not whether he can eavesdrop on terrorists.

Leaving FISA as is -- or eliminating The Terrorist Surveillance Program today -- would mean that the President can still freely eavesdrop on Al Qaeda's conversations. If we eliminated The Terrorist Surveillance Program this minute, the President could still listen in when Osama bin Laden calls. That's because FISA, as is, vests aggressive power in the President to eavesdrop on America's enemies. Why is that so hard for journalists to comprehend?

Those who oppose the Specter bill favor aggressive eavesdropping on terrorists. What they oppose is allowing the President to eavesdrop on Americans in secret, with no judicial oversight.

When Bush and his supporters argue, as they will relentlessly in the coming weeks, that Democrats oppose eavesdropping on Al Qaeda, that is not political advocacy. That is not "spin." It is not a legitimate argument or a factually questionable proposition that ought to be passed along without comment. It is none of those things. What that is instead is a factually false claim -- a lie, if one insists. Nobody opposes eavesdropping on Al Qaeda. The President has the full power right now under FISA to eavesdrop as much as he wants on terrorists. To say otherwise -- to say that Democrats want to stop eavesdropping on terrorists -- is just untrue. Period.

If journalists have any responsibility at all beyond being stenographers, it is to make clear the falsity of claims like that. When political officials make false statements as part of their attempt to persuade the public, the role of journalists is to expose the falsity, point out that it is false, not pass it along and treat it like a questionable though legitimate political argument. Journalistic neutrality does not justify -- nor does it permit -- journalists to repeat the factually false statements of government officials without clearly stating that they are false.

This week's FISA debate is about whether the President can eavesdrop on Americans in secret, not whether he can eavesdrop on terrorists. And most Americans oppose -- not favor -- secret, warrantless eavesdropping. Those are two clear, simple facts which every journalist who reports on this story ought to know and make clear to their readers and viewers whenever they "report" on the debate over eavesdropping.

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