Thursday, May 25, 2006

WaPo gets it 25% of Half Right

It started about thirty hours ago, or so, when I read a Washington Post article by Walter Pincus where Attorney General Gonzales sought to justify the Federal Government’s gathering of domestic telephone records by pulling a three-decades-old court case, Smith v. Maryland, out of his ass (without confirming or denying the existence of said ass, of course).

Gonzales would not confirm the details of a May 11 story in USA Today, which said the National Security Agency had collected phone records of millions of Americans and analyzed them to search for terrorism plots. But Gonzales told reporters that, under the Smith v. Maryland ruling, "those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records."

Let’s skip, for the time being, that Pincus’s summarizing the NSA program as one where the NSA analyzed the records for “terrorism plots” is kind of a stretch (go back and read the original story. . . I linked to it earlier), and let’s instead focus on the fact that this entire page A6 article exists only to explain Abu Gonzales’s point of view, without the hint of an idea that it might not be indisputable fact.

The problem was, I knew it wasn’t fact. I remembered reading about Smith v. Maryland the day the NSA story broke, and I remembered reading that it didn’t apply. I remembered, but I couldn’t find it anywhere to provide a proper citation, so I let it go, hoping someone else in the blogasphere would pick up the ball.

Well, Wednesday morning, Think Progress did.

This is a classic case of misdirection. The issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it’s legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.

Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date:

1. The Stored Communications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland.

2. The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: 1) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or 2) the government obtains a certification from the Attorney General that the program is legal under FISA. According to the USA Today article, neither action was taken.

To reiterate, Wednesday’s WaPo article says none of this. Pincus lets the AG’s assertions go unchallenged. Did it not occur to seasoned reporter like Pincus that maybe Abu Gonzales—the author of many a signing statement and torture memo—has a casual relationship with the law? Would it have been so hard for Pincus or his editors to do a little checking before they went to press?

Well, today, on page A8, Pincus and the Post try to make amends. . . sort of. Without acknowledging that perhaps Think Progress or someone else in the ‘sphere tipped him off, Pincus first reiterates Gonzo’s garbage for a couple of graphs before turning to G. Jack King of the National Association of Criminal Defense Lawyers, who first says Gonzales is right about the Fourth Amendment before getting to the fact that the Government’s actions violate the 1986 Stored Communications Act.

The article then turns to Kate Martin, director of the Center for National Security Studies, to state something you think would be obvious, but given the times, I guess it bears saying:

The government is bound by the laws Congress passes, and when the attorney general doesn't even mention them, it is symptomatic of the government's profound disrespect for the rule of law.

(I know there is more to the quote, but I can’t help but feel the Post needed a quote to buttress the idea that “The government is bound by the laws Congress passes.”)

The article then gives the next four paragraphs to a refutation of King’s opinion—essentially reasserting the point made by the Attorney General. There is no mention in either WaPo article of the 1978 FISA statute.

So, to recap: Two articles. Thirteen paragraphs making the point asserted by Alberto Gonzales. Two paragraphs (one-and-a-half, really) positing that what the AG says is not relevant.

In sum: one really lousy job of reporting.

(Cross-posted at Daily Kos)


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