The Media Is Not Good At Its Job

Glenn Greenwald discussed this yesterday, but today's NYTimes story on the FISC appellate court's ruling on the Protect America Act demonstrates that even on the second day - even two of the better reporters on the best newspaper in the country are incapable of getting the story right. Indeed, perhaps in reaction to criticism leveled at one of them yesterday, the reporters seem to have gone out of their way to find quotables who support their erroneous reporting of the subject:

“It provides a very good result; it reaffirms the president’s right to conduct warrantless searches,” said David Rivkin, a Washington lawyer who has served in Republican administrations.

Of course this is not what the decision did. The decision affirmed that the Congress was not barred by the Fourth Amendment from passing laws that authorize the President to engage in:

the acquisition of foreign intelligence information from person reasonably believe to be outside of the United States [without a warrant.]

What the Court did not decide was the question of whether, absent Congressional prohibition, the President has inherent authority to engage in such activity. Indeed, it seems implicit in the discussion that in fact the President does not have such authority.

Consider for a moment what the Bush Administration position is regarding its violations of FISA from 2001 to 2007, when it engaged in warrantless surveillance with warrants issued pursuant to FISA:

Like Cass Sunstein, Justice cites Hamdi v. Rumsfeld to argue that the Supreme Court recognized the AUMF as authorizing the President to invoke his Commander in Chief power. Like Sunstein, Justice ignores that the Hamdi Court also restricted the President's Commander in Chief power, making it subject to Congress' procedural scheme for processing petitions for writ of habeas corpus. So again this disingenuous argument is raised, and needs debunking[.]

It is a bitter irony that while asserting plenary power as Commander in Chief and defending the violations of FISA by President Bush as supported by the Article II powers accorded the President, at the same time Republicans have played Chicken Little regarding the possible expiration of the Patriot Act and the potential enactment of the ban on torture. These two lines of argument are irreconcilable. What need for the Patriot Act when the President can do whatever he pleases? What harm can a ban on torture cause when the President can violate federal law as he pleases?

Of course this is all nonsense. The arguments regarding the War Powers have always centered on whether the President has the power to wage war without Congressional authorization. Emblematic of this dispute is the War Powers Resolution. And that debate is entirely about who has the power to initiate hostilities. Once hostilities are properly commenced there is no dispute that the President is the sole Commander in Chief.

But never before has a President argued that this power as Commander in Chief provides the President carte blanche to violate federal law. Indeed, in Hamdi, the idea is treated as beneath consideration as the Court does not even address the idea that the President, acting as Commander in Chief, can abolish the right to a writ of habeas corpus, as that power resides SOLELY with the Congress:

"All agree that, absent suspension, remains available to all persons detained in the United States. U.S. Const., Art. 1, Section 9 . . . Only in the rarest circumstances has the Congress seen fit to suspend the Writ. . . . At all other times, it remains a critical check on the Executive, ensuring that it does not detain individuals, except in accordance to law."

Well maybe it is only Constitutional rights that check the power of the President as Commander in Chief? Well no. The Hamdi court said:

"It is undisputed that Hamdi is properly before an Article III court under 28 U.S.C. Section 2241. Further all agree the Section 2241 and its companion provisions provide at least the outline of a skeletal procedure to be afforded a petitioner for habeas review."

Implicitly, the Hamdi Court rejects the notion that the President, acting as Commander in Chief has plenary power, unchecked by federal law or the Constitution. And Hamdi involved an act, as the Court expressly acknowledged, that is a traditional and recognized military function -- the detention of enemy combatants in a war zone. In this case, Hamdi was captured in Afghanistan. Bush's deliberate violations of FISA involves actions which clearly do NOT fall into the realm of traditional military activity. Electronic surveillance, wiretapping and other similar activities IN THE UNITED STATES are far removed from the capture of enemy combatants in Afghanistan.

Thus, if the President's actions in Hamdi are subject to Congressional acts and judicial review, it is unfathomable that his violations of FISA somehow escape these checks.

It is particularly interesting how the Bush Administration and Republicans in Congress were able to pass a law restricting the right to habeas corpus without arguing that the President had unfettered Commander in Chief power in response to Hamdi.

If they could do it for the traditional military act of detaining enemy combatants, why not with FISA? Why did the President of the United States choose instead to deliberately violate federal law? And why do some legal commentators choose to be apologists for this nefarious act?

In short, the passage of the PAA was a rebuke to the Bush Administration's legal position. A court's passing on the PAA can hardly be considered a vindication of the Bush Administration's absurd arguments.

Yet, the New York Times is insistent on maintaining this absurdity. The Media, even the better ones, are simply not very good at their jobs.

Speaking for me only

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    Media incompetence and deliberate (5.00 / 1) (#4)
    by ruffian on Fri Jan 16, 2009 at 12:59:00 PM EST
    obtuseness is at the root of everything. Without an educated populace providing political backbone to the politicians, none of the changes we want can come about.

    I believe the politicians have to start calling them out, by name on their 'errors', to put the kindest face on it. If Obama hasn't got the stomach for it himself then someone like Biden or Schumer has to come out and do it. I mean every single day, like a watchdog report. Delivered from his own lips at a podium. We have been doing web-based fact checking for years and it has not helped one bit.

    The media justify their existence not (5.00 / 2) (#5)
    by Anne on Fri Jan 16, 2009 at 01:54:00 PM EST
    by how well they inform or investigate, but by how much money they make for the big corportations that own them, and the investors who own the stock.

    Obama's not going to be standing at any lecterns anytime soon - and neither is any other politician - reading a laundry list of media errors - he needs the media too much; these are the people who played an integral role in his election, after all.  Those meetings Obama had with members of the media?  They were not about lecturing them for their abysmal coverage and failure to accurately report and frame the issues - it was a move calculated to ensure that he will have a solid cheerleading squad that will gloss over and ignore and be coy about things that might be deserving of a longer and better look.

    They use each other to a fare-thee-well, and we - the people - are incidental to the whole sordid and mutually masturbatory affair.  When you can flex your ego and bask in the limelight and partake of those exquisitely delicious cocktail weenies, and tell yourself you are a Friend of Obama, why would you go stirring up trouble for something as boring and unseemly as the truth?


    I agree (5.00 / 1) (#9)
    by BernieO on Fri Jan 16, 2009 at 03:40:28 PM EST
    I don't think the damage our media does to our country can be overstated. They are all about getting the right demographic ratings as well as endulging their own egos. They constantly act like a bunch of immature adolescents who are trying to fit in with the cool popular kids. Occasionally they actually admit this. I heard an interview on CSpan with Tom Brokaw during Clinton's Global Intiative Conference. Brokaw actually bragged that politics was just like high school, then lamented the loss of Russert, saying he missed being able to call Tim almost daily to get the lastest gossip! (He actually said "gossip".) All I could think was I could not imagine Walter Cronkite ever saying such an idiotic thing. Howard Fineman also used the analogy of high school in one of his columns during the primaries.
    These fools seem to think there is nothing wrong with this attitude. They are having a great time gossiping, trashing the kids who come from hee haw places like Arkansas or are too serious and knowledgeable, all the while sucking up to the guy they would most like to have a beer with. Meanwhile, our country is going to the dogs and our kids are getting killed in war. Just like high school. Right.

    The media is great at its job (none / 0) (#1)
    by lambert on Fri Jan 16, 2009 at 10:44:16 AM EST
    The media's job is making sure that no Villager is ever accountable for anything. So far, I think they're doing a heckuva job.

    NOTE There are, of course, honorable exceptions, like Walter Pincus or Seymour Hersh. But systemically? That's their job.

    Hey, lambert - (none / 0) (#3)
    by Anne on Fri Jan 16, 2009 at 11:41:14 AM EST
    been waiting since OCTOBER to have my account approved at Corrente...know you have been busy, but, three months is a loooong time.  Even tried re-registering using my work e-mail and...crickets.



    I'm sorry, I'm just overwhelmed (none / 0) (#7)
    by lambert on Fri Jan 16, 2009 at 02:52:41 PM EST
    Thanks for pinging me.  Mail me at:

    lambert_strether DOT corrente AT yahoo DOT com

    There may be more than one Anne...


    I'm sorry, I'm just overwhelmed (none / 0) (#8)
    by lambert on Fri Jan 16, 2009 at 02:52:45 PM EST
    Thanks for pinging me.  Mail me at:

    lambert_strether DOT corrente AT yahoo DOT com

    There may be more than one Anne...


    NYTimes Article is Misleading... (none / 0) (#2)
    by santarita on Fri Jan 16, 2009 at 11:27:52 AM EST
    I guess the sexier headline is Court Approves Wiretapping Without Warrants as opposed to Court Approves Warrantless Wiretapping done under the PAA.  I am surprized at the mish-mosh of the story given that its authors Risen and Lichtblau are no dummies on the issues.  Maybe they wrote a better article and their editors butchered it.  As it stands, the article is misleading.  And judging from the readers' comments, they were for the most part misled.

    Why do good reporters get it wrong?  

    Politifact has relaunched its (none / 0) (#6)
    by oldpro on Fri Jan 16, 2009 at 02:28:20 PM EST
    website and reinvented its 'truthometer' to track a whole range of folks in DC...from Obama & his administration to congress to lobbyists to you-name-'em, providing an "up-to-the-minute report card on the Obama presidency."

    They take input!