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December 27, 2005

Both Sides of the Story

Why would George W. Bush look to sidestep the FISA court? After all, they virtually never delay or reject wiretap requests.

Well, until after 9/11, that is.

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

This doesn't speak to the legality of the issue, but it does point out an explanation for Bush's actions. The Left may wish to frame this as a brave court seeking to limit the actions of a man with dictatorial tendencies. It fuels their pre-conceived notions about Dubya and the programs legality, but does little beyond that. The resignation of one of the FISA judges 4 years after the program started, but 1 day after the story broke in the media, does about the same thing.

The media, of course, has been playing up this angle. In the article above, their source is James Bamford, "an acknowledged authority on the supersecret NSA", who compares this to the "bad old days" of Nixon. You'd tend to think, based on the coverage, that anyone who's anyone thinks this is completely illegal. You'd be wrong.

Enter Cass Sunstein. Well actually, he can' t really enter, since the media has virtually shut him out of their coverage to this point. Cass Sunstein is a self-described "liberal" laws professor at the University of Chicago to whom the media goes when they need a quote on Constitutional law. This post at has background on how often he's been to go-to guy (see the comments on Lexis-Nexis searches). However, all of a sudden the media has ignored his views on this constitutional topic. Why? Perhaps it's because his opinion doesn't fit the media's angle on the story. From his interview on Hugh Hewitt's show:

HH: [...] First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?

CS: Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.

HH: Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?

CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.

This interview is chock full of information and analysis you won't find in the mainstream media news coverage of this. Why isn't this getting out? Note the bolded parts below (my emphasis).
HH: Professor Sunstein, have you ever been contacted by mainstream media about this controversy?

CS: A lot. Yeah.

HH: And have you spent a lot of time trying to walk the reporters through the basics?

CS: Yes.

HH: Who's contacted you, for example? The New York Times?

CS: Well, I wouldn't want to name specific ones. It's a little bit of confidentiality there, but some well known ones. Let's just say that.

HH: Let me ask. Have you been quoted in any papers that you've seen?

CS: I don't think so.

HH: Do you consider the quality of the media coverage here to be good, bad, or in between?

CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.

HH: Do you think the media simply does not understand? Or are they being purposefully ill-informed in your view?

CS: You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.

The media is simply not telling both sides of the story, and even according to a liberal professor it's due partially to the media's "reflexively skeptical" view of President Bush; a view that, in turn, causes their coverage to be "pretty bad". According to Sunstein, this is a knee-jerk reaction on the part of the media (one might say "myopic zeal'). Instead of getting both sides, the coverage has been heavily tilted to the "WATERGATE!" side of the ledger. Of course, when the media only gets one side of the story, it almost inevitably gets the liberal side. This provides the talking points the Left then uses ad infinitum, and later exculpatory revelations are ignored. (Much like the latest news about deaths from Katrina. I think we're still waiting for that apology from Kanye West.)

Now, there's nothing at all wrong with the media being a group of professional skeptics; in a sense that's their job. However, as has been noted, EOs and policies by previous administrations that were very nearly the same as this one were buried by the same media that is taking this story and shouting it from multiple rooftops. Their skepticism is quite selective, as is the Left's outrage over this. Those on the Left may wish to make the argument that the media is simply being cautious of the actions of a man who would be king, but since the recent UCLA study that showed how leftward the media tilts, that bias must be taken into consideration first, long before trying to apply some sort of megalomania to Bush himself.

Journalists journal, right? They like to believe themselves to be playing things down the middle, but here's yet another example in a long line of examples to demonstrate they aren't nearly there.

Posted by Doug at December 27, 2005 04:27 PM

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Tracked on December 27, 2005 04:45 PM


Beware of any one who tells you "X has changed the rules..."

Not 9/11, not terrorism, not boogeymen or evil clowns, not Bush himself has changed the rules for ethical living. Believe it.

Posted by: Dan Trabue at December 28, 2005 11:22 AM

I don't have time right now to address ALL the baloney you have written here. For the time being I'll restrict my criticism to the issue of media bias, which you and other conservatives continue to raise unconvincingly. One problem with your most recent charge, as with other studies you cite, is that you either don't read how the study was conducted, or if you do, you don't look for criticisms of the study.

Here are a few. Like other conservatives, you profess to love the constitution but paradoxically hate the ACLU, which opposes violations of civil liberties, be it from the right or the left. The ACLU, which you and your ideological kin would certainly label a left-leaning organization, comes up as conservative by the UCLA study. The NRA comes up as BARELY conservative. And the Rand Corporation comes up as liberal. This is not surprising since the notions of bias used in this study are anything but objective and rigorously defined. Perhaps that is because the authors of the UCLA study themselves were paid fellows of conservative think-tanks.

Lastly, other definitive studies have been carried out and published in scholarly journals (meaning the methods used in these studies were subjected to scrutiny under the peer-review process by experts in the field). These studies all concluded that there is no substantial bias in mainstream media outlets.

Here is the URL of 1 such study:

I could write more, but why should I do your homework for you? You won't listen, and you'll continue to repeat the same claptrap. If your demands - more torture, more indefinite detention without legal rights, more spying on Americans - don't hold water, don't blame the media.

Posted by: dem at December 28, 2005 11:57 AM


Posted by: Dan Trabue at December 28, 2005 12:25 PM

Agreed that outlier data does make for some interesting results, though the researchers noted that. In the case of the ACLU, it they were vociferously against McCain-Feingold, but removing that over-emphasizing point, they do indeed tilt way over to the liberal side. Similarly, the Rand Corporation's liberal score is explained as a methodology issue (Rand doesn't often cite it's conservative sources, hence the liberal citation score), but the study is open about this.

However, neither these nor the NRA are news media, which is really what I'm talking about here. The news media, as a whole, insists they play it all down the middle, but based on who they get their quotes and information from, and thus how the story is reported, they do indeed have a bias for liberal sources. Sunstein is one of them, except (and this is the salient point) they suddenly ignore his views when his view isn't liberal. The talking points are born, and, as with Katrina, no amount of contrary facts that come out later will be given creedence.

Posted by: Doug Payton at December 28, 2005 12:29 PM

Doug thinks it's OK to ignore peer-reviewed studies of media bias, which concluded there is none, in favor of a study that has not undergone peer review and which was authored by people funded by conservative think-tanks. Why? Because according to Doug, the media "do indeed have a bias for liberal sources." Nice circular reasoning.

Doug says it is OK for Bush to exercise executive activism (i.e. bypassing Congress to create new law), but it is not OK for judges to do it. He says spying on Americans is all spin made up by liberals. So instead of referring solely to liberals' objections to spying on Americans by the Bush administration, let's give equal time to conservatives who also were upset by recent revelations:

Sen. Lindsey Graham (R-SC) said, "I don't know of any legal basis to go around" the requirement that the White House formally apply to the FISA court for a warrant to engage in domestic surveillance.

Sen. John McCain (R-AZ) said it is a "legitimate question" to ask why "the president chose not to use FISA."

After Attorney General Alberto R. Gonzales cited executive authority in defending the legality of the administration's actions, Sen. Arlen Specter (R-PA) - who is in charge of organizing an investigation into the issue - responded that he was "skeptical of the attorney general's citation of authority."

Barrons, the conservative financial weekly owned by the WSJ, called for an investigation into the Bush administration's use of domestic surveillance as a possible impeachable offense. December 26. Look it up.

Should I list more?

Posted by: dem at December 28, 2005 02:29 PM

There is a good bit of precedent to suggest that Bush already had this power in wartime; no new law necessary. It's called the Constitution. Yet in spite of very legitimate calls for investiations from both sides, there are still those on the Left calling for impeachment, without knowing all the facts.

I will look at that study when I have an opportunity. I'm instested in how they came to their conclusions. In the meantime, a reliably liberal professor who is quoted time after time by the press in the past is suddenly ignored by them when his opinion aligns with conservatives. The press will call this "fair and balanced".

Posted by: Doug Payton at December 28, 2005 03:13 PM

Just because they didn't quote the fella you wished they'd quoted does not make it unbalanced.

Posted by: Dan Trabue at December 28, 2005 03:40 PM

C'mon, Dan. This is not just some random guy. The point is that the press suddenly ignores the opinion of a guy they've quoted consistently for ConLaw issues just as his opinion sounds conservative. They know his take; he said a number of outlets have contacted him. But none of them have used him as a source.

Instead, even in the article I linked, the side presented is overwhelmingly the "Watergate" opinion. And a liberal professor sees this and considers the coverage "pretty bad", on a topic as important as this. But I guess that doesn't concern you.

Posted by: Doug Payton at December 28, 2005 11:39 PM

It's one guy's opinion. And I'm not even debating the opinion. It's just that for every instance of a supposed liberal spin of the MSM, I can give you an instance of a conservative spin of the MSM. It happens both ways. That's why they're Mainstream.

Not because they're consistently liberal or consistently conservative, and certainly not because they're consistently unbiased, but because they are back and forth around the middle, probably doing a relatively decent job of portraying middle america with its back and forths.

They rarely portray much from the further Left's (green party, for instance) POV and rarely portray much from the further Right's POV (Libertarians, for instance). They're Mainstream.

If you or I keep an eye open for news with a slight liberal slant, we'll find it. It's there. BUT if you or I keep an eye open for news with a slight conservative slant, it's there, as well.

All I'm saying is those on the right often are seeing what you want to see, reading Right wing reports that report what they want to hear and not hearing the other side of the story very well.

I could start posting on a daily basis (hourly, if I had the time) examples of a right wing slant of the MSM, but what would that prove? That I've sat around a lot watching for it.

No thanks, and I'd suggest those on the right could do better than to spend much time on this. Keep an eye on it? Be aware of it? Certainly. Complain on and on about it? A waste of time.

Posted by: Dan Trabue at December 29, 2005 09:19 AM


I think there is a lot of merit in your article. You would have been better off in the end to emphasize MSM stupidity, not MSM bias.

As a point of principle, I think someone could defend either side of the 'wiretapping' issue. I would err on the side of keeping people safe, but that's just me. Trouble is, that's not the issue. If the President doesn't use these tools and the country suffers an act of terrorism that could have been prevented, the left will demand impeachment because he didn't use the tools. If the President uses these tools and prevents terrorism (current state of events - so far so good), the left will demand impeachment for using the tools. If the President uses the tools and we still suffer an act of terrorism (could happen - let's pray), the left will demand impeachment for not using the tools enough. The left has no principle on this point, just hate. And the MSM is too stupid to see it. They do know that Watergate sold a lot of newspapers, and they want to do that again. This time, however, the safety of the nation is at issue.

Posted by: bruce at December 29, 2005 11:33 AM

Well, dem, it looks like I won't be reading the study; don't want to plunk down $28 for 1 day's access to it.

I did note from the abstract that it goes all the way back to 1948, when one could argue that the media was more conservative than it is today. So over the last 50+ years things would tend to average out. I'd be more interested in a study covering perhaps the last half of that time period.

Posted by: Doug Payton at December 29, 2005 11:14 PM

Cass Sunstein is just wrong in this case. Full stop.

The U.S. Constitution does not give the President the authority to violate the rights of the people without due process, even in a time of Congressionally Declared War™. If the President and the rest of his supporters, like Cass Sunstein, want to found their arguments on the legal principle that brought us the wrongly decided Korematsu v. United States (1944), then they should just come out and explicitly say so.

Don't pull this wimpy cheeseball drive-by of saying "the Constitution" gives the President the power. That's weak. You should be able to cite the US Code and the judicial precedent. Good luck trying to do that without invoking Korematsu v. United States.

Posted by: s9 at December 29, 2005 11:15 PM

Did I miss it, or did you respond to the point I made in a previous track about FISA not requiring court approval for the first 72 hours of surveillance? If the Bush administration was in such a rush, it could still have sought FISA court approval up to 3 days after it started breaking the law.

If you don't think Bush (or more likely Cheney) was breaking the law, then I agree with S9. Please cite the part of the Constitution that defends the right of the executive branch to violate FISA and supercede Congressional law.

How are the Bush administration's actions any different than those of so-called activist judges that you and other conservatives have attacked on so many occasions for bypassing or making law where none previously existed?

Posted by: dem at December 31, 2005 11:00 AM

In my last comment I mistakenly ended the first paragraph with "breaking the law". The Bush administration wasn't breaking the law until after 72 hours of unapproved surveillance. It has been breaking the law ever since.

Posted by: dem at December 31, 2005 01:12 PM

I think the actual case needs to be made that Congressional law can supercede the Constitution. The lawyerly types are making the case the Article II buttressed by the Authorization for Use of Military Force passed by Congress gave the President enough lattitude for the limited wiretaps. (And these indeed were very limited, dealing only with phone numbers retrieved from a known terrorist. Dem, your cute comment on another post made no sense, unless you've truly been calling terrorists on a regular basis.) If a law is indeed unconstitutional, working around it isn't "activist". Activist judges seek to make the Constitution say what it doesn't.

As I said, none of know all the facts, although that hasn't kept some folks from making accusations as statements of fact. Let's have the investigation and let the chips fall where they may.

Posted by: Doug Payton at January 2, 2006 07:36 PM

So by your definition when the Bush administration redefined "torture" was it committing executive activism? Because that is the way it seems.

Your argument that the Bush administration was not committing executive activism when it eavesdropped on Americans hinges on the authority congress gave the administration to employ "all necessary and appropriate force" against al Qaeda. Let's put aside for a moment the objection to that argument on the grounds that the congressional mandate is vague and that existing FISA law, which was established to prevent domestic surveillance by the government, was not specifically addressed by that mandate.

Let's focus on the argument about "all necessary and appropriate force." For there to be any credibility to your argument - and that of President Bush - the White House should have had a specific list of people in mind based on information it gathered prior to conducting electronic surveillance by the NSA. Instead, what the NYT article made clear was that "the agency maintained the authority to choose its eavesdropping targets and did not have to get specific approval from the Justice Department or other Bush officials before it began surveillance on phone calls or e-mail messages. The decision on whether someone is believed to be linked to Al Qaeda and should be monitored is left to a shift supervisor at the agency, the White House has said."

I maintain that the Bush administration has made up its own interpretation of some laws to bypass others (FISA). It is indeed activism in that this interpretation defies the judgment of experts such as the assistant attorney general, James Comey, who refused to sign off on an extension of the program, and of a former senior analyst at the NSA, Russell Tice, who has volunteered to testify before congress about electronic surveillance of Americans by the NSA. Tice said, “The freedom of the American people cannot be protected when our constitutional liberties are ignored and our nation has decayed into a police state."

Lastly, your argument is a slippery slope. We don't know how limited the surveillance has been, despite your claim to the contrary. And we don't know how far Bush's line of reasoning will allow federal spying on Americans to be taken. Precedent is a dangerous thing when it comes to erosion of liberty. I have German and South American friends, some of whom are descendents of Holocaust survivors, who can attest to that.

I'm sorry we disagree about this issue. I had hoped that we wouldn't. I'm reassured that we agree that it necessitates an investigation to clarify the limits of federal power over our hard-fought freedoms.

Posted by: dem at January 3, 2006 10:58 PM