Failing to Use the 1st Amendment to Defend the Bill of Rights

The striking new midtown Manhattan tower of the New York Times seats all of the writers and editors together in one giant dual-story open plan. But this, it seems, is not enough to forge story conversations between neighboring desks when it comes to the central issues of Americans' civil liberties and the presidential campaign.

In a March 6 editorial, "What We'd Like to Hear," the Times editorial writers spoke poignantly about the need for serious candidate discussion of topics that go to the heart of our democracy. "After eight damaging and divisive years, there is certainly a lot that needs to be debated," the editorial said, and listed six pressing concerns, ending with "unrelenting assaults on civil rights, civil liberties and the balance of powers in government."

Apparently no one else at the Times was listening. The thumbnail sketches of candidates prepared by the Times campaign team for the "New York Times Election Guide 2008" do not mention civil liberties, civil rights or the balance of powers among the seven issues meriting analysis of candidate positions-healthcare, abortion, climate change, immigration, Iraq, Iran, the economy.

Nor is the New York Times alone. The next president will have a critical role in creating a balance between security and liberty, a central theme of democracy and something that has shifted dramatically under this presidency. But the Washington Post and Fox News also fail to include civil liberties in their issue tracking, and CNN addresses them only in terms of how the candidates will "conduct the war on terror."

"Sometimes I reflect on how incredible it is that there's a seismic shift in the number of Constitutional protections we no longer have, but it often seems too large an elephant for mainstream media to fully grasp," said Hope Marston, a former television producer who is now the Western regional organizer for the Bill of Rights Defense Committee, a nonprofit organization that describes its mission as restoring protections guaranteed under the Constitution.

Where do the candidates stand on key civil liberties concerns? On secretive no-fly lists, "national security letters," warrantless surveillance, databases of citizen transactions, restriction of habeas corpus, torture? Americans might have to look to media abroad to find out. The BBC news service (12/21/07) described the positions of U.S. presidential candidates on Bush-era measures like the Patriot Act, Guantanamo, coercive interrogation and warrantless wiretapping, noting, "Voters have to decide whether the measures are effective, and whether the restrictions they place on personal freedom are justified."

There were openings to talk about these issues throughout the primary election news cycle. Congress considered and passed new laws on foreign intelligence surveillance and restrictions on torture. George W. Bush vetoed the torture bill and threatened to veto the surveillance bill as well. What will the next president do?

In March, the Wall Street Journal (3/10/08) published an exposAf(c) of secret tracking by the National Security Agency of credit card, phone, email and travel data of Americans. "A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance," the article said.

On Capitol Hill, Federal Bureau of Investigation Director Robert Mueller, a presidential appointee, acknowledged that the FBI had "improperly accessed Americans' telephone records, credit reports and Internet traffic in 2006" under the USA Patriot Act, according to the Associated Press (3/6/08).

On March 18, the Los Angeles Times revealed that the inspector general found that the terrorism watch list was inaccurate, outdated, incomplete and included many innocent people. The list of 900,000 names was established by a presidential directive.

These matters are central to the functioning of democracy. "Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters," wrote Julian Sanchez in the L.A. Times (3/16/08).

But in segmented coverage, journalists covering such issues rarely report on the positions of candidates, and when they do, those positions are rarely examined. The New York Times' Eric Lichtblau (2/13/08) did write about the votes of "presidential contenders" -- in coverage two days after the vote -- after the Senate passed foreign intelligence surveillance (FISA) legislation that conformed to Bush's demands for telecom immunity. But in an informative discussion on PBS's NewsHour (3/13/08), host Jim Lehrer drew out two experts about the FISA legislation and how telecom immunity relates to the rule of law, liberty and security-without ever mentioning the candidates.

CNN (2/15/08) brought together the FISA vote and the candidates while managing to ignore the critical import of immunity for telecoms that violated the law. Describing the FISA vote as "a safety and security issue that is reverberating on the campaign trail," Suzanne Malveaux showed a clip of McCain saying, "I don't have to tell anybody we are in a dangerous world." The segment did not explain that McCain, who previously criticized excessive surveillance, voted to support Bush.

Instead, CNN's piece indulged in a psycho-politico analysis of Clinton and Obama's "positioning" -- both opposed the legislation but were absent for the vote -- on national security. Missing was the real question: Should any president have unlimited authority to pry into Americans' private communications without a warrant by arranging secret interceptions with their phone and email companies?

Worse, the news personnel guiding presidential debates simply ignore the subject altogether. An army of television personalities have moderated debates: CNN's Wolf Blitzer, Anderson Cooper and Suzanne Malveaux; NBC's Brian Williams and Tim Russert; MSNBC's Chris Wallace; ABC's Charles Gibson, Diane Sawyer and George Stephanopoulos. No question has been asked about FISA of candidates of either party, and only a single question about warrantless spying on Americans in a year of debates -- more than 30 -- according to a Media Matters analysis (1/24/08). The sole question was directed to Republican candidate Mitt Romney by Fox News correspondent Wendell Goler (9/5/07), who asked whether he would approve of eavesdropping on mosques.

The subject of torture was much in the news throughout the primaries. In October and November of 2007, the Senate probed Bush's attorney general nominee, Michael B. Mukasey, about his unwillingness to describe waterboarding as torture. In December, news emerged about the CIA's destruction of interrogation tapes that showed torture. On March 8, 2008, Bush vetoed legislation that would have prohibited the CIA from using waterboarding or other forms of aggressive interrogation that are not in the military manual.

"It will be up to the next president to restore the rule of law," said the editorial writers at the New York Times of Bush's veto (3/11/08). But the paper did little to add to the wisdom of voters. Like warrantless surveillance, torture is not a topic on the Times' campaign issue tracker.

The media has devoted some attention to the position of Republican candidates on torture, due, no doubt, to the McCain factor. A campaign article (11/16/07) described McCain as "the living embodiment" of the subject of torture, because of his experiences as a prisoner of war. Another story (11/3/07) explained how the other, non-POW Republican candidates approved harsh interrogation techniques.

But the paper had a more difficult time dancing around McCain's vote against legislation that would have prevented the CIA from using waterboarding. Two articles (2/17/98, 3/3/08) offered McCain's justification, criticized by human rights groups, that CIA interrogators needed flexibility. But the articles failed to portray innumerable inconsistencies. Human Rights First, an advocate of the legislation McCain voted against, countered McCain's suggestion that the Military Commissions Act of 2006 already outlawed waterboarding: "Despite Senator McCain's wish, the fact remains that the nation's chief law enforcer, Attorney General Michael Mukasey, refused to declare waterboarding illegal," the human rights group noted (2/15/08).

The Washington Post (3/8/08) gave a more straightforward description, noting that the vote had "potential ramifications" for McCain, "a longtime critic of coercive interrogation tactics who nonetheless backed the Bush administration in opposing the CIA waterboarding ban."

Journalists serving as debate moderators have asked few questions about torture. In the Republican forum in St. Petersburg on November 28, 2007, Romney tangled with McCain over waterboarding, but the question was asked by a Seattle student on YouTube. In a September 26 debate of Democrats in New Hampshire, NBC's Tim Russert asked a question about torture, but it was constructed to be a "gotcha" for Clinton. When she rejected the use of torture in a hypothetical situation, Russert declared that her husband disagreed. "Well, he's not standing here right now," she replied.

The standout in coverage has been PBS's Now, with its "Threats to Democracy" series. On warrantless wiretapping, Now asked (3/14/08): "Who might be eyeing the hundreds of millions of e-mails Americans send out each day, and to what end?" In that segment, David Brancaccio reported on a secret room set up by the NSA in San Francisco to scoop up email. Another report on torture tactics in interrogation (3/7/08) probed activities at Guantanamo. Both stories were complemented with online "Candidate Positions" that explained contenders' votes on key legislation.

Why doesn't the rest of the press use its 1st Amendment powers to call attention to threats to other civil liberties? "What has become clear in the aftermath of 9/11 is how much expediency trumps safeguards," said Associated Press president and CEO Tom Curley in March at a dinner of the Radio and Television News Directors Foundation (AP, 3/8/08). He cited a reduction in oversight of the Executive Branch, an extension of police power, and prisons "established in places where government or military operatives circumvent due process or control trials." Said Curley: "It's at moments like these when a free press matters most."

Cynthia L. Cooper, a former practicing lawyer, is an independent journalist in New York and co-author, with Elizabeth Holtzman, of The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens (Nation Books, 2006).

This article was originally published in the May/June issue of FAIR's magazine Extra!.

FAIR (Fairness & Accuracy In Reporting), the national media watch group, has been offering well-documented criticism of media bias and censorship since 1986.