June 10, 2008 | By Tim Jones

Three Media Mistakes on Warrantless Wiretapping

Here's a game you can play when reading or watching news about the President's warrantless wiretapping program. There are a few mistakes that the media keeps repeating over and over and over — see if you can spot them.

">Friday night's exchange on PBS News Hour between host Judy Woodruff and New York Times columnist David Brooks is typical:

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JUDY WOODRUFF: There was a little bit of news, David, today, that he -- maybe bigger than that -- that McCain agrees with the president that this wiretapping of Americans on their international phone calls and e-mails is legal. Was this a surprise? Some say this is a switch from where he was earlier.

DAVID BROOKS: ... Politically, I think it won't hurt him. And his second point is there's law, I'm going to enforce the law. But, politically, people want -- the FISA program, frankly, has been always been popular politically.

For the moment, let's put aside Brooks' equivocation over McCain's flawed and deliberately ambiguous position on wiretapping, and zoom out to look at the three central ways this exchange mischaracterizes the larger wiretapping debate:

One: "I'm Going To Enforce The Law." It's unclear what Brooks is attempting to say here. In fact, the immunity legislation pushed by McCain and Congressional Republicans is intended to let corporations off the hook for breaking the law with impunity. Far from "enforcing the law," immunity legislation would completely undermine the law, effectively placing a Congressional seal of approval on corporate vigilanteism.

Similar conflations have been made by
Fox News
and Fox's Bill O'Reilly.

Two: "The FISA program, frankly, has always been popular politically." Brooks doesn't mean "the FISA program," he means "the warrantless wiretapping program." It's important to distinguish between the two: FISA — the Foreign Intelligence Surveillance Act — was put in place in 1978 and limits corporate cooperation with government surveillance through a carefully-designed system of court oversight and warrants. In contrast, the Bush administration's surveillance program was specifically designed to circumvent the FISA law and wiretap Americans without oversight.

Of course, "the FISA program" sounds a lot less bad than "the warrantless wiretapping program." The telcos benefit enormously from this blurring, and yet the media consistently fails to make the distinction. This mistake has also been made by
The Hill,
NPR,
NBC,
MSNBC,
Fox,
and by columnist Bob Novak.

In addition, Brooks' assertion of the program's popularity is wrong. According to repeated polling, a strong majority of Americans oppose both the warrantless wiretapping program and telco immunity legislation.

Three: "McCain agrees with the president that this wiretapping of Americans on their international phone calls and e-mails is legal." Judy Woodruff is a few shades more accurate than Brooks here, but her mistake is in the word "international". The government has not only been intercepting international communications — they've also been intercepting communications that begin and end inside the USA. Even if you've never phoned or emailed outside the US, it's likely that communications you've made have been intercepted by the Bush administration under this program.

We know this through a careful technical analysis of the evidence provided by whistleblower and former AT&T employee Mark Klein. (You can read the analysis [PDF] and see the evidence [PDF] for yourself.) A March 2008 article in the Wall Street Journal confirmed the program's domestic focus.

(As a particularly insane variation on this theme, news organizations sometimes simply assert that the government's "authority to spy on terrorists" is at stake, as in these reports by
The Washington Post,
The Des Moines Register,
USA Today, Fox News,
and Fox's Chris Wallace.)

Those are three of the biggest mistakes the media consistently makes: First, claiming that immunity legislation supports the rule of law, when it's in fact specifically designed to undermine it. Second, confusing the 1978 FISA act with the radical new surveillance regime concocted by the Bush administration. And third — probably the most pervasive of all — mischaracterizing the wiretapping program as targeted at "international" or "terrorist" communications, when it in fact intercepts the entirely domestic communications of millions of ordinary Americans.

Next time you see discussion of wiretapping in the media, take a close look and see if you can catch the same mistakes being made again. (And again, and again, and again...)


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