Who is doing real journalism?

Because the institutions that are designed to check the government have been failing so profoundly, the ACLU and similar groups have been forced to step into that role.

Published July 24, 2008 9:21PM (EDT)

Newsweek's Jonathan Alter has an article this week filled with all the standard anti-blogger "pajama" platitudes (along with some praise) and, along the way, Alter writes this:

But we're finding [blogging] works better for keeping on top of daily flaps than for learning genuinely new information. Bloggers rarely pick up the phone or go interview the middle-level bureaucrats who know the good stuff. It's a lot easier to chew over breaking stories and bash old media. Where do they get the information with which to bash? Often from, ahem, newspapers.

Leave aside the question of how much "real reporting" bloggers do as compared to newspapers. If one looks at most of the vital disclosures of the last seven years -- whereby concealed, legally dubious behavior of one of the most secretive administrations of the modern era is exposed -- one finds that such exposure comes overwhelmingly from two sources: (1) conscientious whistle-blowers inside the Government, and (2) advocacy groups such as the ACLU, which have tirelessly waged one litigation battle after the next in order to unearth the Bush administration's secret, improper conduct.

Today, the ACLU (with whom, as I've previously disclosed, I consult on various matters) released three formerly secret Bush administration memos -- two from the CIA to the Office of Legal Counsel inside the DOJ, and one from OLC to the CIA -- which set forth, in a revoltingly clinical tone that is by now all-too-familiar, extremely permissive standards for what constitutes (and what does not constitute) "torture." Raw Story's Nick Juliano has an excellent summary of the memos' lowlights, including the assertion that treatment of detainees does not constitute "torture" as long as there is no "specific intent to inflict severe pain or suffering," and the claim that interrogators are free to inflict mental harm as long as it falls short of "harm lasting months or even years after the acts were inflicted upon the prisoners."

The August 4, 2004 CIA memo (.pdf) specifically noted that "the waterboard" (sic) is not "torture," and it further points out that the President ordered that the Geneva Conventions are not always to be complied with, but rather, only "to the extent appropriate and consistent with military necessity." The same memo also pointedly notes that the Durbin Amendment -- which bars the use of torture and "cruel, inhuman and degrading treatment" in all circumstances -- "is not, as of now, law."

What's particularly notable here -- beyond the fact that this is further proof that our Government has engaged in deliberate, systematic and illegal torture -- is what a closed, secretive society we've become. Even the memos which the ACLU obtained -- between four to six years old -- are heavily redacted, with the vast bulk of the legal conclusions of our Government simply blacked out (.pdf). We just don't live in an open society, as most of the most consequential actions in which our Government engages are undertaken behind an increasingly impenetrable wall of secrecy.

The vast bulk of these memoranda consist of nothing more than legal arguments as to why the Bush administration claimed it had the authority -- as the ACLU's Jameel Jaffer put it -- "to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes." There is absolutely no justification whatsoever for these Memoranda to be concealed from the public. All they do is set forth the Executive Branch's purported understanding of the law. How can legal arguments about the President's alleged authority possibly be secret?

And yet it was only because the ACLU relentlessly pursued protracted litigation that the CIA was ordered to turn over these documents and we learned about them. That's the same way we learned about the 81-page Memorandum authored in 2003 by John Yoo that provoked such disgust back in April (that's the Memo that calmly analyzed whether "'scalding water, corrosive acid or caustic substance' thrown on a prisoner" was legal and which noted that a prior, still-secret OLC Memorandum had concluded "that the Fourth Amendment had no application to domestic military operations"). And the DOJ's memoranda justifying Bush's NSA warrantless eavesdropping program -- as well as other long-abandoned, patently illegal surveillance programs -- remain concealed.

It has been left to the ACLU and similar groups (such as the Center for Constitutional Rights and Electronic Frontier Foundation) to uncover what our Government is doing precisely because the institutions whose responsibility that is -- the "opposition party," the Congress, the Intelligence Committees, the press -- have failed miserably in those duties. And while Democrats in Congress passively ignore their oversight responsibility or do the opposite by helping to conceal Bush crimes, the Democratic Party establishment goes around repudiating and even demonizing the factions that have tried to step into the void that they've left, as illustrated by this cowardly "senior Democratic lawmaker" who anonymously told The Wall St. Journal this about Obama's recent FISA vote:

"I applaud it," a senior Democratic lawmaker said. "By standing up to MoveOn.org and the ACLU, he's showing, I think, maybe the first example of demonstrating his ability to move to the center. He's got to make the center comfortable with him. He can't win if the center isn't comfortable.

When Jesse Helms died last month, there was a discussion about Helms in an online email group of prominent liberal Beltway journalists, and one participant asked whether the Left has any equivalent to Jesse Helms, and a well-known "liberal" journalist responded: "Yes -- the ACLU extremists." Time's Joe Klein said last year that objections to the Senate's warrantless eavesdropping bill were merely "fodder for lawyers and civil liberties extremists" -- a phrase which GOP Rep. Pete Hoekstra then praised in National Review. The very same Beltway denizens who have so submissively enabled the radicalism of this administration simultaneously harbor and continuously spew contempt for those Shrill, Unserious "activists" -- such as the dreaded ACLU extremists -- who challenge and disrupt their little Beltway fiefdom.

Even in those rare instances of good investigative journalism -- Dana Priest's CIA black sites exposé and the Risen/Lichtblau disclosure of the NSA program -- most of the disclosures are due primarily to brave whistle-blowers inside the administration who were willing to risk their careers and even their own freedom in order to expose serious government wrongdoing. In addition to Priest and the NYT, there is Charlie Savage and Seymour Hersh and Jane Mayer and other actual journalists who have uncovered serious government wrongdoing, but those are the glaring exceptions.

Jonathan Alter can pat establishment journalists on the back as much as he wants, but the record of the establishment press over the last seven years is one characterized far more by failure and complicity than by real journalism. Alter laments that Americans "so distrust the mainstream media" that they "often prefer rumors to facts," but that's a natural and reasonable response to a media that gave us Iraqi mushroom clouds and Jessica Lynch's heroic firefight and Pat Tillman's dramatic confrontation with the Enemy and a whole slew of other government-dependent propaganda and government-promoting myths.

So much of the real journalism that is occurring isn't from TV and magazine stars but largely from severely under-paid advocates at public interest groups and anonymous government whistle-blowers who aren't even meant to be "journalists." The function of the ACLU and similar groups isn't really to uncover illegal behavior on the part of our Government. That is the intended function of the Congress, the media and the opposition party. But those institutions haven't done that -- with very rare exception, they don't do it (and in the case of Congress, one is hard-pressed to think of any real exceptions at all). As a result, the ACLU and similar groups -- with far fewer resources -- have been forced first to uncover what the Government does, to try methodically and incrementally to erode the government's wall of secrecy, to perform real journalism, in order then to engage in their real function of opposing Government encroachments and defending the Constitution, basic privacy rights and civil liberties.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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