“Media Matters”; by Jamison Foser

In the week since President Bush's admission that he ordered domestic spying on U.S. citizens by the National Security agency -- making him, in the words of Nixon White House counsel John Dean, “the first president to admit to an impeachable offense” -- political figures, newspapers, legal experts and scholars across the country have denounced the president's actions.

This Week:

Conservative legal scholars denounce domestic spying -- but media remains awash in misleading defenses of Bush

Wash. Post polling director continues to stonewall on impeachment question

What's next in conservative cash-for-columns scandal?

Happy Holidays from Media Matters

Conservative legal scholars denounce domestic spying -- but media remains awash in misleading defenses of Bush

In the week since President Bush's admission that he ordered domestic spying on U.S. citizens by the National Security agency -- making him, in the words of Nixon White House counsel John Dean, "the first president to admit to an impeachable offense" -- political figures, newspapers, legal experts and scholars across the country have denounced the president's actions.

The Houston Chronicle -- which endorsed Bush's 2004 re-election campaign -- wondered in a December 17 editorial:

What will crawl out from under the Oval Office rug next? What constitutional mutation will come to light? What new way will be found to diminish distinctions between a free society and the benighted civilization terrorists want to impose?

The Chicago Tribune, which also endorsed Bush in 2004, added on December 19:

This may also be a violation of American law, which requires that a special court issue warrants for wiretaps on communications originating in the United States. Some officials familiar with the program said it is illegal. But a Justice Department memo took the radical position that the congressional resolution authorizing the president to act against Al Qaeda enabled him to use methods that were previously forbidden.

Had the administration really believed it had congressional consent for spying on Americans at home, it could have asked for legislation to affirm that. It didn't, for the obvious reason that Congress would not have agreed.

The Tribune followed up the next day:

President Bush not only defends what he's done but vows to keep doing it, never mind the evidence that he is acting in violation of the law. If he persists in pressing beyond the bounds of presidential war-making authority, it will be up to Congress to press back and restore a sensible balance of powers.


Even though this program did not comply with FISA, the administration insists its actions are permissible under the law and the Constitution. Neither claim is persuasive.


If Bush thinks FISA is inadequate to the demands of this new war, he should go to Congress and the country and make the case for changing it. So far, the only case the administration has made is that it thinks it can scorn the law.

Others agreed. The Pittsburgh Post-Gazette denounced “the unacceptable actions of a police state.” The New York Times wrote: “Nobody with a real regard for the rule of law and the Constitution would have difficulty seeing” a violation of civil liberties in the domestic spying. The St. Petersburg Times called Bush's order “dangerously ill-conceived and contrary to this nation's guiding principles.” The Philadelphia Daily News concluded: "[I]t's clear now that this administration cannot be trusted to protect our civil liberties."

In speaking out against the president's actions, the nation's editorial boards were joined by legal experts and scholars.

In an op-ed published by the right-wing Washington Times, conservative constitutional lawyer -- and former Reagan Justice Department official -- Bruce Fein argued forcefully that:

President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.


The president maintained that, “As a result [of the NSA disclosure], our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” But if secrecy were pivotal to the NSA's surveillance, why is the president continuing the eavesdropping? And why is he so carefree about risking the liberties of both the living and those yet to be born by flouting the Constitution's separation of powers and conflating constructive criticism with treason?

Fein went further in an appearance on National Public Radio:

On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want -- I don't need to consult any other branches -- that is an impeachable offense. It's more dangerous than Clinton's lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that ... would lie around like a loaded gun, able to be used indefinitely for any future occupant.

It is worth remembering that when Fein says “It's more dangerous than Clinton's lying under oath,” he says it as someone who was among Clinton's harshest critics.

Norman Ornstein, a resident scholar at the conservative American Enterprise Institute and the consummate Washington insider, said on the same NPR broadcast: “I think if we're going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed.”

Ornstein added in a December 21 column:

The Bush approach to presidential power is simple, straightforward and clear: “L'etat, c'est moi.” As conservative constitutional scholar Bruce Fein puts it, even King George III would blush at asserting this level of bald, unchecked power. But the way in which the president is handling the revelations of secret wiretaps on Americans -- unapologetic, and promising to continue doing it -- makes it clear that this is just what the president believes.

Of course, we can feel better with the administration's assurances that there were checks on the president's wiretapping--by the Justice Department. Especially since those assurances come at the same time we have learned that the unanimous career-staff recommendation that the Texas redistricting scheme engineered by Rep. Tom DeLay (R-Texas) that violated the Voting Rights Act was derailed by Justice Department politicos. That followed on the heels of the revelation that the abominable Georgia voter identification law, also challenged by career Justice attorneys as a poll tax, was derailed by some of the same politicos.

We can be even more reassured since this week one of the key politicos in these cases, Hans von Spakovsky, was rewarded with a nomination to the Federal Election Commission. Watching Attorney General Alberto Gonzalez justify the wiretaps by relying on the inherent powers of the commander in chief suggests that the Bush Justice Department is to checks and balances what Paris Hilton is to chastity.

University of Chicago law professor (and former law school dean) Geoffrey Stone wrote in an December 21 Chicago Tribune op-ed:

Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil was “lawful.” It was not. It was a blatant and arrogant violation of American law. If Bush wanted the authority to undertake such surveillance, he should have gone directly to Congress and sought such authorization, publicly. He did not do this, because it would not have been granted. So, instead of acting in accord with his pledge to “preserve, protect and defend the Constitution of the United States,” he acted surreptitiously and unconstitutionally. What is revealing about Bush's view of the terrorists is that he apparently believes they assume we act within the bounds of our own Constitution. So, he decided, we'll trick them. We won't.

Given the seriousness of the matter -- and the criticism “the president's plan” has received from conservatives like Ornstein, Fein, Sen. Chuck Hagel, Sen. Arlen Specter and others -- you might think that even the most knee-jerk Bush defenders would check and double-check their facts before defending the use of the National Security Agency to spy on American citizens -- and that news organizations would, at long last, refuse to let false and misleading claims by the Bush administration and its allies go uncorrected.

Unfortunately, that hasn't been the case.

News organizations including the Los Angeles Times, the Associated Press, and Fox News reported Bush's argument that unwarranted wiretaps are necessary in the interest of speed -- without telling their readers and viewers that the current law governing wiretaps allows the administration to obtain a warrant up to 72 hours after the fact in cases in which “an emergency situation exists.”

On Fox News' Special Report, Charles Krauthammer went several steps further:

Krauthammer falsely suggested that President Bush's authorization of domestic spying -- without obtaining a search warrant -- was an “expedient action,” rather than a “scandal,” because the administration did “tell the court” after the fact that it was going to do so. In fact, the administration never alerted the relevant court to its surveillance of domestic phone calls.

Krauthammer also misstated the law by claiming that it would be a “mistake” to follow a law that would force the White House to “wait to go to a judge” to obtain a warrant rather than “act immediately” to thwart a potential terrorist attack -- a point with which guest host Jim Angle, Roll Call executive editor Morton M. Kondracke, and Weekly Standard executive editor Fred Barnes readily agreed. In fact, in emergency situations, the law does not require the White House to “wait to go to a judge.” The emergency provisions on electronic surveillance in the United States Code permit the attorney general to make an independent judgment to immediately begin surveillance of domestic phone calls up to 72 hours prior to formally applying to the Foreign Intelligence Surveillance Act (FISA) court for a warrant.

On the same edition of Special Report, Ronald Kessler -- author of the Bush-friendly biography A Matter of Character: Inside the White House of George W. Bush -- argued that even under the emergency provisions of the law, it would take “at least a day, maybe two days to get all the signatures required to get an authorization from the attorney general” to begin surveillance.

Kessler's claim is simply false; surveillance can begin immediately under the emergency provisions.

Predictably, many conservative pundits responded to news that the president ordered an apparently illegal domestic spying operation by arguing that former President Bill Clinton asserted the same authority Bush now claims. For example, National Review editor Rich Lowry claimed that

the Clinton administration had asserted “exactly the same authority” that President Bush has cited in defense of his controversial decision to allow the National Security Agency (NSA) to conduct warrantless domestic surveillance. Lowry was referring to then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony before the Senate Intelligence Committee, in which she stated that the executive branch has “inherent authority to conduct warrantless physical searches.”

But “physical searches” are not the same as electronic surveillance and, as Gorelick's testimony made clear, were not restricted at that time by the Foreign Intelligence Authorization Act (FISA), which has since been amended to include them. The foreign intelligence activity that the Bush administration has argued it can conduct without warrants -- domestic wiretapping -- has for 27 years been governed by FISA, which specifically requires court orders. On the other hand, the foreign intelligence activity to which Gorelick was referring -- “physical searches” -- was not covered by FISA when she said that Clinton had the “inherent authority to conduct” them. Further, Gorelick testified that she supported legislation requiring FISA warrants for physical searches. Following the passage of such legislation in 1995, the Clinton administration no longer asserted that it had the authority to conduct warrantless physical searches. By contrast, the Bush administration has claimed that it is not bound by the corresponding FISA provision requiring warrants for domestic eavesdropping.

The Gorelick statement was first highlighted in National Review White House correspondent Byron York's December 20 article headlined "Clinton Claimed Authority to Order No-Warrant Searches":

In a little-remembered debate from 1994, the Clinton administration argued that the president has “inherent authority” to order physical searches -- including break-ins at the homes of U.S. citizens -- for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.

While York's article did not explicitly draw a parallel between the Clinton administration's 1994 policy regarding foreign intelligence searches and the current Bush administration controversy, Lowry and other media figures apparently relied on his article -- radio host Rush Limbaugh and Fox News anchor Brit Hume did so explicitly -- to equate the authority asserted by Clinton with the one more recently claimed by Bush. But at the time Gorelick testified before the Senate Intelligence Committee that Clinton could order physical searches within the United States without a court order, FISA did not address such searches, as the weblog Think Progress noted in response to York's piece. In her testimony, Gorelick clearly stated that electronic surveillance, such as the wiretapping Bush authorized, was governed by FISA at the time:

GORELICK: In FISA, the privacy interests of individuals are protected not by mandatory notice but through in-depth oversight of foreign intelligence electronic surveillance by all three branches of government and by expanded minimization procedures.

It wasn't just the usual suspects like Lowry and Limbaugh and Hume who got Gorelick's testimony wrong. Former Clinton administration associate attorney general John Schmidt falsely claimed in an op-ed that Gorelick testified that the president has the authority to “go beyond” the terms of the Foreign Intelligence Surveillance Act (FISA). Schmidt's op-ed, widely cited by media conservatives, contained several other dubious defenses of Bush's domestic spying operation.

But when it comes to distorting the Clinton record, it's hard to beat Internet gossip Matt Drudge, who selectively quoted the text of a Clinton executive order to falsely claim that Clinton authorized, in Drudge's words, “SECRET SEARCH ON AMERICANS WITHOUT COURT ORDER.” As Think Progress demonstrated, Drudge was lying -- and he used the same selective-quoting trick to falsely claim President Carter also authorized warrantless domestic spying.

On the December 21 broadcast of CNN's The Situation Room, host Wolf Blitzer and CNN legal analyst Jeffrey Toobin were discussing the Clinton administration's use of the FISA law when Republican lawyer Victoria Toensing called CNN, apparently requesting air time. Bizarrely, Blitzer put her on the air:

BLITZER: Stand by for a moment, Jeff. Victoria Toensing has called us. She's a former Justice Department official. She's a well-known Washington attorney. Vickie, you're hearing the discussion I'm having now with Jeff Toobin, and you wanted to weigh in. So go ahead. What's your point?

TOENSING: Well, the Clinton administration did carry out that authority when they went into Aldrich Ames's house without a warrant. And they argued before the House -- Jamie Gorelick did -- that they had the inherent -- the president had the inherent constitutional authority to do so.

BLITZER: Did they go to the FISA court after the fact, do you know, Vickie?

TOENSING: Well, I don't know if they got a warrant after the fact, because their position was, in her testimony, was that the president, and I quote, “has the inherent authority to conduct warrantless physical searches for foreign intelligence purposes.” And the interesting thing about this is it was actually a criminal case by that time because they were looking at Aldrich Ames as having committed espionage.


TOENSING: Well, I can tell you what Jamie Gorelick said before the House committee.

BLITZER: Go ahead.

TOENSING: She said, “We relied on the inherent authority of the president to conduct warrantless searches.” That's a quote.

No, that isn't “a quote.” Toensing misquoted and distorted Gorelick's testimony that the president had the “inherent authority to conduct warrantless physical searches.” At the time, FISA did not apply to physical searches for foreign intelligence purposes, as Media Matters for America has noted. Clinton later supported Congress's amendment of FISA to require court orders for physical searches.

But Blitzer knew none of this - or if he did, he didn't bother to correct his guest “Vickie.” He allowed a Republican operative to simply call into his show, gave her direct, live access to his audience, asked her broad, softball questions (“Vickie, you're hearing the discussion I'm having now with Jeff Toobin, and you wanted to weigh in. So go ahead. What's your point?”) and didn't correct her false claims and misquotation of Gorelick. Instead, he ended the segment by thanking her for her lies:

BLITZER: Victoria Toensing served in the Justice Department during the Reagan administration. She was watching our program, called us in. And thanks for doing so. Vickie.

Naturally, Toensing was back on the Situation Room the next day. Did Blitzer note that she had lied to his audience the day before? Of course not:

BLITZER: We're joined now by deputy assistant attorney general Victoria Toensing, former White House special counsel Lanny Davis. Vickie, you called in yesterday. You've researched, you've looked closely at it. You think the president is on strong ground.

That's right. Just a day after he bizarrely put Toensing directly on air to lie to his viewers after she cold-called his show, Blitzer actually endorsed Toensing's knowledge.

Later, Toensing actually said, “I don't want to get too bogged down in the law.” She's a lawyer, who was invited on air specifically to discuss the legality of Bush's actions, and she doesn't want to get “bogged down in the law”? This is someone Blitzer thinks deserves access to his viewers? Someone who is worthy of merely being able to call in and get put immediately on-air on a moment's notice?

A cynic might argue that a lawyer, invited to give a legal opinion about a legal matter, who doesn't want to get “bogged down in the law” probably doesn't have a very good case. Blitzer, though, continued to treat Toensing as a serious guest.

Media Matters has compiled -- and debunked -- the most widespread and damaging conservative misinformation about the domestic spying scandal.

Wash. Post polling director continues to stonewall on impeachment question

On December 9, we noted that Washington Post polling director Richard Morin claimed that a poll question asking if President Bush should be impeached if he lied about the Iraq war would be “biased and would produce a misleading result.”

We pointed out that this is a bizarre claim coming from a man who oversaw the Post's many 1998 polls that asked if President Clinton should be impeached -- less than a week after Clinton's relationship with Monica Lewinsky was first reported, the Post asked “If this affair did happen and if Clinton did not resign, is this something for which Clinton should be impeached, or not?” (Notice the frivolity of the question: despite constant claims by Republicans and the media that “this isn't about sex, it's about lying,” the Post asked if Clinton should be impeached for having an affair.)

On December 20, Morin conducted an online chat on the Post's website, where he angrily dismissed questions asking why the Post refused to poll about impeachment. Media Matters staff submitted a question well in advance of the beginning of the chat:

In her November 13 column, Post Ombusdman Deborah Howell addressed reader requests for The Post to polls to measure public support for impeachment.

Howell wrote: “First, there was a swarm to me and to Post Polling Editor Richard Morin asking that The Post do a poll on whether President Bush should be impeached ... The question many demanded that The Post ask is biased and would produce a misleading result, Morin said; he added that the campaign was started by Democrats.com.”

Please explain WHY a question asking if President Bush should be impeached if he lied to the country about war is “biased”.

Please also explain how this is consistent with polls the Post ran -- under your direction, I might add -- in 1998 asking whether then-President Clinton should be impeached if he had an affair with Monica Lewinsky. Do you now believe those questions you asked -- and reported on -- throughout 1998 were “biased”? If so, do you believe you and The Post owe Clinton an apology?

Why does The Post think it is appropriate to raise the spectre of impeachment when there is a Democratic president, but not when there is a Republican in office?

For more information, see this post: Media continues to ignore impeachment polling.

Morin didn't address the inconsistency or even acknowledge his earlier claim that such a question would be “biased.” Instead, he changed his rationale for refusing to ask about impeachment, claiming:

[W]e do not ask about impeachment because it is not a serious option or a topic of considered discussion -- witness the fact that no member of congressional Democratic leadership or any of the serious Democratic presidential candidates in '08 are calling for Bush's impeachment. When it is or they are, we will ask about it in our polls.

Enough, already.

As Media Matters noted:

The Post first reported the Lewinsky story on January 21, 1998. The newspaper began polling on the question of whether the public would support impeachment just two days later, on January 23 -- hardly long enough for the “considered discussion” Morin now says is a prerequisite for asking about impeachment.

Nowhere in Morin's new explanation does he claim that a question about impeachment would be “biased” or “would produce a misleading result,” as Howell says Morin originally told her. Further, his new claim that the Post does not ask about impeachment because “no member of congressional Democratic leadership or any of the serious Democratic presidential candidates” are calling for it does not ring true. After all, one recent Post poll asked, “Should all U.S. forces in Iraq be withdrawn immediately, or should they be decreased, but not all withdrawn immediately” -- despite the fact that no member of the congressional Democratic leadership has called for the immediate withdrawal of all U.S. forces from Iraq. Finally, Morin's statement that impeachment is not “a topic of considered discussion” seems to be at odds with the findings of other polls showing that the majority of Americans think Bush should be impeached if he lied about Iraq.

After ducking our question and refusing to explain -- or even acknowledge -- his claim that an impeachment question would be “biased,” Morin posted our question at the end of his chat, without responding to it. Earlier, Morin had devoted significantly more space to explaining why he was “furious” about being asked questions about impeachment than he did to explaining his (new, but still nonsensical) reason for refusing to poll on the matter:

For the past eight months or so, the major media pollsters have been the target of a campaign organized by a Democratic website [apparently a reference to Democrats.com] demanding that we ask a question about impeaching Bush in our polls.

The website lists the e-mail addresses of every media pollster, reporters as well as others. The Post's ombudsman is even on their hit list.

The website helpfully provides draft language that can be cut-and-pasted into a blanket e-mail.

The net result is that every few months, when this website fires up the faithful with another call for e-mails, my mailbox is filled with dozens and dozens of messages that all read exactly the same (often from the same people, again and again). Most recently, a psychology professor from Arizona State University sent me the copy-and-paste e-mail, not a word or comma was changed. I only hope his scholarship is more original.

We first laughed about it. Now, four waves into this campaign,we are annoyed. Really, really annoyed.

Some free advice: You do your cause no service by organizing or participating in such a campaign. It is viewed by me and others with the same scorn reserved for junk mail. Perhaps a bit more.

Some free advice for you, Mr. Morin: You do your newspaper no service by giving misleading and evasive answers to sincere questions. You do your newspaper no service by claiming a poll question would be “biased” if asked about President Bush when you asked a similar question about President Clinton. You do your newspaper no service when you refuse to explain or even acknowledge that inconsistency, but invent a new explanation instead. You do your newspaper no service when that new explanation is also contradicted by other questions contained in your polls. And you do your newspaper no service when you deride and insult your readers, attacking the origin of the questions you receive rather than dealing with their substance. All of this is viewed by your readers with the same scorn reserved for arrogant, dissembling politicians. Perhaps a bit more.

What's next in conservative cash-for-columns scandal?

Last week, we noted that two more conservative columnists, Doug Bandow and Peter Ferrara, were revealed to have taken undisclosed payments parties in exchange for favorable columns. Bandow and Ferrara were secretly paid by lobbyist Jack Abramoff and wrote columns favorable to the Northern Mariana Islands, an Abramoff client. This week, Media Matters examined other media reports similar to the columns by Bandow and Ferrara. With frequent speculation that Bandow, Ferrara, Armstrong Williams, Maggie Gallagher, Michael McManus, and Charles Chieppo are merely the tip of the iceberg, Abramoff, the Bush administration, and anyone else who has secretly paid supposedly independent columnists should immediately disclose the full details of those payments, so readers know who is -- and, just as importantly, who isn't -- on the take.

This week, the New York Times examined “The issue of whether supposedly independent writers and researchers are having their work underwritten - directly or indirectly - by lobbyists and other special interests,” which the Times said was “nothing new” but added:

[T]he payments by Mr. Abramoff and a closer review of the work of the Institute for Policy Innovation, a group founded in 1987 by a former House Republican leader, Dick Armey of Texas, are evidence that the ties may be much closer than research organizations, conservative and liberal, would prefer to admit.

It may well be the case that liberal “research organizations” eventually will get caught up in the cash-for-columns scandal -- but it hasn't happened yet, and the Times gives no indication or evidence to support it's implication that this is a practice that cuts across ideological lines. If evidence of liberals taking payments like those taken by Williams, Bandow and Ferrara emerges, that will naturally be newsworthy. But for now, the Times article is another example of the media's unfortunate tendency to pretend that scandalous behavior by conservatives and Republicans is “nonpartisan.”

Happy Holidays from Media Matters

Media Matters will be on vacation until January 3. Hey, if the president can take a month off, we can take a week; we aren't setting any records. While we're away, please check out our special year-end features:

Have a safe and happy holiday season.

Jamison Foser is Executive Vice President at Media Matters for America.