Why would George W. …
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 Redstate.org 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 bipartisan…in 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.

(Cross-posted at Stones Cry Out and Blogger News Network. Comments welcome.)

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