Anonymous Liberal for Glenn Greenwald: FISA reform and the honesty gap

Published October 23, 2007 5:55PM (EDT)

I've written previously that the Great Unmentionable in American politics, the elephant that is always in the room but must never be acknowledged, is the existence of what I'll call (for lack of a better term) an honesty gap between the left and the right. Or to put it slightly differently, it is simply not the case that partisans from each side of the aisle are equally willing to lie and mislead in pursuit of their political goals.

It is understandable why people insist that the right and left in this country are mirror images of each other. We do, after all, live in a country with only two major political parties, parties that have been fairly evenly matched historically and have enjoyed a similar degree of political success. This, combined with the American journalistic norms of objectivity and balance, naturally leads to a sort of symmetrical, yin and yang approach to covering politics. Nancy Pelosi is treated as the left-wing equivalent of Tom Delay. Al Franken is the left-wing equivalent of Rush Limbaugh or Sean Hannity. And the editorial position of the New York Times is the yin to the Wall Street Journal's yang.

For some reason, we are all supposed to pretend this is true, that the only real differences between the left and the right are ideological in nature. It's completely taboo to point out what every close observer of American politics knows, i.e., that the difference between the left and right is not just ideological but tactical. Put simply, there is a far greater willingness among right-wing partisans in this country to push the boundaries of honest discourse, to move beyond mere spin and into the realm of outright deception. Our political discourse is asymmetrical.

Just to be clear, I am not suggesting that there are no hacks or demagogues on the left or that all right-wing partisans are dishonest. I'm merely suggesting that, on balance, there is a real and significant difference in the tactics that right- and left-wing partisans are willing to employ to achieve their desired political ends.

Perhaps someday when I have more time I'll try to write a book defending this thesis, but for now you're going to have to settle for a single (albeit highly illustrative) example. This week there were a number of developments, in both the House and the Senate, with respect to Foreign Intelligence Surveillance Act legislation. These events resulted in dueling editorials in the Wall Street Journal and New York Times.

The Times editorial board was, not surprisingly, disappointed by what happened in Congress. The Times editorial describes the House and Senate bills and the legislative wrangling that produced them, and then chastises the Democrats for not putting up more of a fight. While argumentative throughout, there are no claims in the editorial that are misleading factually. The bill and the state of the law are accurately described. The most provocative line, by far, in the whole piece is this:

The question really is whether Congress should toss out chunks of the Constitution because Mr. Bush finds them inconvenient and some Democrats are afraid to look soft on terrorism.

That's certainly an argumentative claim (as you would expect in an editorial), and there's no doubt that supporters of the Senate bill would find it very unfair. They'd claim that the bill helps the government better protect the American people and is not unconstitutional. Ultimately, though, the "truth" of this claim depends on how you interpret the Fourth Amendment, which in turn hinges on what you think constitutes a "reasonable search." In other words, we are far from the realm of demonstrable falsehood. Whether you agree or disagree with the Times' conclusion, it's pretty clear that it is genuinely held and is not a calculated attempt to deceive.

Compare that with Monday's Wall Street Journal editorial on the same subject. The Journal's editorial board offers lukewarm praise for the Senate compromise bill and then observes:

This is a major defeat for the political left and most House Democrats, who want to treat the war on terror like domestic law enforcement. Under their preferred rules, a U.S. President couldn't even eavesdrop on a foreign-to-foreign terror call if by chance that call was routed through an American telephone switch.

This is, and I can't put too fine a point on it, an intentional and demonstrable lie. Indeed, it is false on several different levels. First, as a general matter, no member of the "political left" or the Democratic Party has ever suggested that the president should not be allowed to eavesdrop on terror calls. The debate is about when officials should be required to get warrants (which a secret court stands ready to approve at a moment's notice and which can even be sought after surveillance has begun). More important, though, it is simply not the case that House Democrats want the law to require warrants for foreign-to-foreign communications, even when they pass through American telephone switches. The very first section of the Democratic House bill would clarify beyond all doubt that no warrants are required for such surveillance. The Journal's editors know this and are intentionally lying to their readers.

The Journal's editors then go on to critique what they see as the major "problems" with the compromise bill. They write:

Worse for Presidential authority, the Administration has agreed to let the Foreign Intelligence Surveillance Court pass judgment after the fact on its overseas wiretap findings and procedures. This is an expansion of judicial power from the 1978 FISA law, which applied to domestic wiretaps.

Again, this is just not true. The 1978 FISA law, Section 101(f)(2), requires individual warrants for "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." In other words, warrants were required not just for domestic calls, but for international calls to or from someone in the United States. The Senate compromise bill would not require any court oversight of purely foreign communications, and it would allow the government to intercept international calls involving someone inside the U.S. subject only to an after-the-fact review of the procedures used to ensure that no purely domestic calls are intercepted. That is, by any definition, an expansion of the executive's surveillance powers and a contraction of judicial power. To suggest the opposite, as the Journal does, is ridiculous.

In the very next line, the editors write:

No President has ever conceded that his ability to eavesdrop on a foreign enemy abroad could be second-guessed by judges. And no court has found that the Constitution's Fourth Amendment protections against unlawful searches apply to foreigners working out of Karachi. This bill creates a bad precedent on both counts.

This passage is incredibly misleading. While it is true that no court has found the Fourth Amendment to apply to foreigners in Karachi, Pakistan, this is a complete non sequitur because no one has ever claimed otherwise and nothing in the proposed bill would provide any protections to foreigners in Karachi. The limited oversight measures contained in the bill are intended solely to protect the rights of U.S. persons, and as stated previously, the bill actually dilutes the protections that existed under the 1978 law. And to the extent the Journal's editors are claiming that no president has conceded that his ability to spy abroad can be subject to judicial oversight, that too is simply not true. FISA has always applied to wire-based communications between someone inside the U.S. and someone abroad, and no president until the current one has ever asserted the power to disregard FISA's warrant requirement. They all followed the law. But again, the editors know this; the goal here is not to inform but to deceive.

I realize these two editorials together provide only a single example of the sort of rhetorical asymmetry I'm alleging exists, but I think they're fairly representative. Again, if I had a lot more time, I might try to document this phenomenon in a more comprehensive way, but alas, I have a day job. Moreover, this is the kind of thesis that could never be proved in a way that would convince right-wing partisans. I do wish, however, that more mainstream journalists and pundits -- who, at least on some level, know that what I'm saying is true -- would acknowledge it once in a while. The truth is that the right and left are not mirror images of each other, and the two sides don't always fight by the same rules.

I'm not holding my breath, though. Many of you may remember the controversy that erupted in the fall of 2004 when someone leaked an internal memo written by then ABC News political director Mark Halperin. Halperin wrote:

The current Bush attacks on Kerry involve distortions and taking things out of context in a way that goes beyond what Kerry has done. Kerry distorts, takes out of context, and mistakes all the time, but these are not central to his efforts to win. We have a responsibility to hold both sides accountable to the public interest, but that doesn't mean we reflexively and artificially hold both sides "equally" accountable when the facts don't warrant that.

What Halperin wrote was obviously true. By this point in the campaign, Bush was essentially running against a completely fictional caricature of John Kerry. His stump speech and campaign commercials completely misrepresented Kerry's positions on just about every major issue. And the reverse was simply not true.

Nonetheless, when Halperin's memo was leaked to Drudge, conservatives went nuts (Power Line: "Drudge has the most astonishing media bombshell ever") and cited it as evidence of the media's intense liberal bias (which is kind of funny if you actually know anything about Mark Halperin). The fallout from that episode, which led to calls for Halperin's head, will no doubt discourage others from pointing out the asymmetry of our political discourse, even internally. This phenomenon, this honesty gap, shall remain -- at least for the foreseeable future -- the Great Unmentionable.

By Anonymous Liberal

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