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Illegal, Yes—But Not Newsworthy

Wiretapping testimony hardly covered

SOURCE: Fairness and Accuracy in Reporting (FAIR)
It's big news that top officials of the Justice Department considered the Bush administration's warrantless wiretapping to be illegal and even unconstitutional. So why have so many news outlets declined to tell this story?
The revelations coming from a Senate Judiciary Committee hearing last week were startling. On May 15, former Deputy Attorney General James Comey testified about the Bush administration's extraordinary efforts in March 2004 to gain legal approval for the National Security Agency's domestic surveillance program by visiting Attorney General John Ashcroft's hospital room as he recovered from gall bladder surgery. The story is surprising, at the very least—but has so far 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 fleshed out the details—that he refused to sign on to an extension of the program, at least in part because the Justice Department's Office of Legal Counsel argued that the program 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, 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. When he learned of their plan, Comey—who was then acting attorney general due to Ashcroft's illness—and FBI Director Robert Mueller met them at the hospital, and Ashcroft dramatically rebuffed the attempt to get him to overrule his subordinate. Weeks later, unspecified changes were made to the wiretapping plan, and the Justice Department approved.

There are any number of important questions to ask regarding the behavior of the White House: What parts of the program did Justice Department officials think were illegal? Since the wiretapping had been underway for many months prior to March 2004, was the program violating the law up until the changes were made?

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.

Yet some media outlets seem to feel that there isn't a story here at all. As Media Matters noted (5/16/07), two of the three network newscasts (CBS Evening News and ABC World News with Charles Gibson) 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 seemed to gain additional momentum 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, burying 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) 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."

Perhaps Will's quip tells us something about the media's indifference to this scandal. After all, revealing White House malfeasance of this potential magnitude could have serious consequences; advocates for the impeachment of George W. Bush, for example, could point to the position taken by Ashcroft and Comey as evidence that Bush had authorized an illegal wiretapping program. The Washington Post's strong editorial concluded this way:
The administration, it appears from Mr. Comey's testimony, was willing to go forward, against legal advice, with a program that the Justice Department had concluded did not 'honor the civil liberties of our people.' Nor is it clear that Congress was adequately informed. The president would like to make this unpleasant controversy disappear behind the national security curtain. That cannot be allowed to happen.
The story could very well "disappear" if present media trends persist. In fact, the scandal has not yet "appeared" in some of the nation's largest media outlets.

Contact CBS Evening News and ABC World News with Charles Gibson and ask them to report on the revelations about the White House's warrantless wiretapping program.

CBS Evening News
(212) 975-3691

ABC World News with Charles Gibson
(212) 456-4040
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This story was published on May 23, 2007.