A potential attack by Al-Qaeda, accompanied by red and orange shockwaves of terror, provided an urgent lead for Fox Special Report on July 26, 2007. The news? A claimed glitch in the program of electronic surveillance established for collecting foreign intelligence. The law needed an immediate "fix," host Brit Hume said.
"The nation's intelligence chief urgently pleads with Congress to fix the laws which he says are roadblocks to listening in on two-way communications between foreign terror suspects overseas," said Hume. "And he points to the recent National Intelligence Estimate about al Qaeda's rebuilding as part of his argument."
"Terrorists" were mentioned seven times in the story, "Al-Qaeda" three times and "radical jihadists" cropped up in an interview clip with bill supporter Rep. Pete Hoekstra (R-Mich.). A second supporter, Rep. Heather Wilson (R-N.M.), said: "Terrorists are using the communications networks that we have built to plot and plan to kill Americans." The sole countering perspective came from Rep. Anna Eshoo (D-Calif.), who, given a five-second response, said it was inappropriate to scare the hell out of Americans.
The story plugged a law with a lofty title--the "Protect America Act of 2007." The law was to amend the Foreign Intelligence Surveillance Act.
The same theme crackled at the top position on Fox for the next 10 days. But beyond the language of terror and brightly colored alerts, the stories were jammed with red herrings. The law was passed in record speed and signed by Bush on August 5. "Congress Is Stampeded," declared the subhead on a Washington Post editorial the next day.
The spy bill went far beyond patching a glitch, and instead blasted a hole in the prior system of protections from electronic surveillance. It changed who may be subjected to spying without a warrant, the standards to be applied, who approves it and what assistance must be provided by private companies. In a seismic shift, the law permitted spying on an American without a court review of the need for it.
The Protect America Act never refers to terrorists, Al-Qaeda, radical jihadists or even intelligence "targets." It covers communications with anyone, including U.S. residents, when the surveillance is "directed" at persons "reasonably believed to be outside the U.S." Another clause permits the collection of information through tracking devices even if the communication merely "concerns" a foreign person, potentially permitting domestic surveillance of two Americans in the U.S., according to a legal analysis by the nonpartisan Congressional Research Service (8/23/07). The sweep could extend to reporters, bloggers, lawyers, charity workers, candidates and to billions of communications by ordinary individuals.
The new law silently toppled the oversight of the Foreign Intelligence Surveillance Court (FISC) set up 30 years ago after the ugly discovery that Nixon ordered, in the name of national security, wiretapping of antiwar critics, journalists, political opponents and even his brother. Under the new measure, the attorney general and national director of intelligence set out the rules for wiretapping and self-certify that they've met them. No warrant is necessary. The old FISA court, which used to review intelligence-gathering that reached U.S. citizens and lawful residents, is relegated to accepting the procedures for certification unless they are "clearly erroneous." The law forces telephone and Internet service providers to assist with the surveillance.
The law ratified a scheme of domestic spying that the Bush administration conducted illegally and in secret for years until exposed by whistleblowers and reporters. Ongoing congressional investigations are reviewing the contours of those efforts, including inappropriate pressure placed on the hospitalized former Attorney General John Ashcroft to approve them and possible perjury about them by his successor, Alberto Gonzales.
The blitz of Fox stories, ignoring the legal context, focused instead on terror. Fox News Washington correspondent Jim Angle declared (Fox Special Report, 7/27/07), "Our country is at enhanced risk of terrorist attack," and Congress had to act before leaving for its August recess. The existing program forced intelligence officials "to seek warrants to eavesdrop on two terrorists, both overseas," if their communications were routed through a U.S. server, he said, although the new law goes far beyond eliminating this barrier; its most controversial elements encroach on the rights of ordinary people in the U.S. who have nothing to do with terrorism.
In fact, according to Lisa Graves, deputy director of the Center for National Security Studies, the Bush administration rejected proposals that would have limited FISA changes to a "fix" permitting warrantless surveillance of foreign-to-foreign communications routed through the United States. Sen. Russ Feingold (D-Wisc.), who has chastised the administration's secret wiretapping, said on Fox News Sunday (7/29/07): "Communications between two foreign sources is something that all of us have publicly said we can agree should be changed. But that's not what they're pushing for."
"The law governing eavesdropping was passed in the 1970s, long before cell phones or emails," Angle claimed in his July 27 report, neglecting to mention that the law has been updated multiple times, including in 1994, 1998, 1999, 2000, 2001, 2002 and 2004, as well as in 2006 in the Patriot Act (Federation of American Scientists, "Foreign Intelligence Surveillance Act").
Fox also overlooked the 4th Amendment to the U.S. Constitution and court rulings holding that Americans can be subjected to foreign intelligence-gathering only upon a showing of need. And there's no history of urgent investigations held up by overzealous privacy concerns: The FISA court granted all but a handful of 20,000 applications; of 2,072 applications for surveillance of Americans received in 2005, all were approved. The applications are sealed, the court proceedings secret and applications could be approved retroactively. But FISA drafters did believe that independent oversight, however modest, provided an important check against potential overreaching by an executive.
The three major television networks did nothing to stop the Fox run. None of them covered the story during Senate deliberations. NBC managed to eke out a sentence on the day before the bill was signed, noting that the House was in rare Saturday night session on a bill giving the president "more power to eavesdrop on suspected terrorists." ABC and CBS didn’t run a single story until after Bush put the law into effect with his signature on August 5.
Early reports from the Associated Press embraced the "terrorist" narrative as well. "President Bush wants Congress to modernize a law that governs how intelligence agencies monitor the communications of suspected terrorists," wrote AP's Deb Riechmann (7/28/07). In the story, Rep. John Boehner (R-Ohio) charged that opponents "failed to learn the lessons of September 11 that we need to break down the impediments to intelligence collection," although the 9/11 Commission actually found that intelligence of an attack had been collected and delivered, but not acted upon.
Especially garbled reporting emerged from PBS, which let spinning control a stilted "debate." Judy Woodruff (NewsHour, 8/1/07) sat by numbly as administration supporter Rep. Peter Hoekstra (R-Mich.) tossed out a series of misstatements, declaring that the proposed bill solely affected foreign terrorists. "If we're collecting on an American, the administration is very clear: Collecting on Americans, you need to go to court and get a warrant," said Hoekstra.
The terrorist hype didn't stop after the bill was signed. On MSNBC, Chris Matthews (Hardball, 8/6/07) let Ron Christie, a former aide to Vice President Dick Cheney, misdescribe the new law: "We are not talking about warrantless eavesdropping on American citizens. We are talking about terrorists, people in foreign lands."
One of the few coherent post-signing discussions was CNN guest host Joe Pagliarulo (Glenn Beck Show, 8/6/07) interviewing the Aspen Institute's Clark Kent Ervin. Noting that the law permitted warrantless eavesdropping on Americans' international communications, Pagliarulo asked, "Will this law actually help us combat terrorists, or is it just a total invasion of privacy?"
Ervin responded that the country needed an appropriate balance and an independent judicial review: "You know, I would like to be able to trust our government, but I think the experience shows that we can't. That's the whole genius of America, checks and balances." He added: "That's really the best we can do to reconcile security and liberty."
The New York Times found itself playing catch-up, running its serious commentary after the law was in the can, despite its groundbreaking 2005 expose of the Bush administration's warrantless wiretapping (12/16/05; Extra! Update, 2/06). On July 29, 2007, the Times ran a page-1 review of U.S. surveillance without even mentioning the new push in Congress. On August 1, six days after Fox began hyping it and two days before a Senate vote, the Times ran a story on the new bill, tucking it away on page 12. Afterwards, as reality set in, the Times ran an editorial opposing the bill (8/7/07), and, days later, news analyses by lead reporters on the issue (8/11/07, 8/19/07).
But after the Times was attacked for "fear-mongering" about a "tepid" measure (National Review, 8/21/07), the paper turned over op-ed space to University of Texas law professor Philip Bobbitt (8/22/07) to dismiss what the headline called "The Warrantless Debate Over Wiretapping." "The statutory change is unnecessary, I suppose," Bobbitt wrote, "if you believe that there is in fact no real threat, that it's all hype by the White House to expand its powers."
Still missing, by and large, are discussions about how to "protect America" and also to "protect Americans." But that won't happen unless a larger segment of the media rejects the terroristic hype and summons the courage to talk about both security and liberty.
Cynthia L. Cooper, a former practicing lawyer, is an independent journalist in New York City and co-author, with Elizabeth Holtzman, of The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens (Nation Books, 2006).