Jun 1 2007

Illegal, Yes–But Not Newsworthy

Wiretapping testimony barely covered

On May 15, former Deputy Attorney General James Comey testified to the Senate Judiciary Committee about the Bush administration’s extraordinary efforts in March 2004 to gain legal approval for the National Security Agency’s domestic surveillance program. The story was startling, at the very least—involving top officials confronting each other in the hospital room of a seriously ill Attorney General John Ashcroft—but it attracted little media curiosity.

The incident was first reported in January 2006 by the New York Times (1/1/06) and Newsweek (1/9/06) to little notice. Comey’s testimony added the critical detail that, acting as attorney general due to Ashcroft’s illness, he refused to sign on to an extension of the wiretapping program, at least in part because the Justice Department’s Office of Legal Counsel argued that it was illegal. Several Justice Department officials, including Comey and Ashcroft, were apparently ready to resign if they were overruled by the White House.

On March 10, 2004, then-White House counsel Alberto Gonzales and chief of staff Andrew Card decided to go to Ashcroft’s bedside to seek approval for the wiretapping program, despite Ashcroft’s having temporarily stepped down. When Comey learned of Gonzales and Card’s plan, he and FBI Director Robert Mueller met them at the hospital, where Ashcroft dramatically rebuffed the attempt to get him to overrule his replacement. Weeks later, unspecified changes were made to the wiretapping plan, and the Justice Department dropped its opposition.

Many legal experts have long considered the administration’s warrantless wiretapping program to be illegal and indeed unconstitutional (as U.S. District Judge Anna Diggs Taylor ruled on August 17, 2006). But the fact that such views were shared by top officials at Bush’s Justice Department is a very important development in the story.

It raises several key questions:

What aspects of the program did Justice Department officials think were illegal?How substantial were the changes that won the department’s approval?

If the department thinks that the program up until March 2004 violated the law, what recourse do those who were illegally spied on have?

Yet some major media outlets seemed to feel that there was no story here at all. As Media Matters noted (5/16/07), two of the three network newscasts (CBS Evening News and ABC World News) did not mention Comey’s testimony. On May 20, ABC World News mentioned the story in a report about Alberto Gonzales’ political future: “Adding to the drumbeat, revelations about a hospital visit Gonzales paid to former attorney general John Ashcroft to try to get approval for the administration’s warrantless wiretapping program.” Given that this was the first time the newscast had mentioned these “revelations,” ABC viewers may have been at a loss about what this might add to the “drumbeat.”

The story got a new news hook on May 17, when George W. Bush refused to answer a question about the incident (“I’m not going to talk about it. . . . I will tell you, however, that the program was necessary”). Bush’s stonewalling, however, elicited very little media follow-up. The New York Times’ account of the press conference (5/18/07) did not even mention it; the paper buried Bush’s refusal to answer simple questions in another story the same day about Democrats’ opinions of Alberto Gonzales.

The Washington Post editorial page (5/18/07), however, was unusually harsh in its criticism of Bush over what it called the “Wednesday Night Ambush,” arguing that it

matters enormously . . . whether the president was willing to have his White House aides try to strong-arm the gravely ill attorney general into overruling the Justice Department’s legal views. It matters enormously whether the president, once that mission failed, was willing nonetheless to proceed with a program whose legality had been called into question by the Justice Department.

The Sunday morning chat shows, usually obsessed with inside-the-Beltway dramas, mostly steered clear of the controversy. ABC’s This Week (5/20/07) was the notable exception, where conservative George Will likened the incident to something out of “a thriller set in a banana republic.”

The Washington Post’s strong editorial concluded this way:

The president would like to make this unpleasant controversy disappear behind the national security curtain. That cannot be allowed to happen.

Thanks to misplaced media priorities, no national security curtain is needed to make this story disappear. In fact, the scandal never even appeared in some of the nation’s largest outlets.