While the fourth amendment was invoked by many interested parties during the recent heated debate about the NSA on Capitol Hill, it was not the only constitutional protection in play.
We are all well aware that freedom of the press was so widely viewed by the founding generation as critical to the burgeoning American republic that it was specified in the very first amendment of the Bill of Rights. But for what purpose?
At the risk of posing rhetorical questions, was freedom of the press guaranteed so that we could all know the latest polling data in political races? Which politicians are up and which are down? Or what strategies politicians are using to win elections?
No, that is the work of the political class. The media was given the first amendment guarantee for one purpose, to hold politicians and public officials accountable.
Every once in a while, an issue arises that serves as a litmus test of the media’s stewardship of this constitutional protection. And the challenge to the NSA surveillance program was just such a test, for it involved the fundamental proposition that the government should be allowed to invade the privacy of every single American without obtaining a warrant, a proposition that would have been utterly stunning to ordinary Americans in days gone by, and not exactly popular these days either.
The media – from the networks to the major newspapers to Fox News – failed this test miserably. If you watched the latest Sunday shows and other national coverage, you would have thought the only issues in play were how much his fellow Republicans hate Rand Paul for taking the issue to the limit, how much this will help or hurt his presidential campaign, and whether he will succeed in raising gobs of money off his stubborn refusal to back down from his commitment to force the Patriot Act to expire.
I mean, many people may know that Hillary Clinton’s poll numbers have dropped or that she refuses to answer any questions from reporters or that we now have, what, 25 or 30 possible Republican candidates for president, but how many of us can speak with clarity about the NSA surveillance program?
There were three issues revolving around the program – its constitutionality in light of the fourth amendment, its legality under the Patriot Act, and its efficacy. Since even the fiercest advocates of the program have not defended its constitutionality with any vigor, and a federal court has ruled that the program is not legal under the authority cited to justify it by the NSA, section 215 of the Patriot Act, the only remaining question is its efficacy – the one issue that could justify its existence, or at a minimum spark the type of national debate needed over whether such a massive invasion of privacy by the federal government is justified.
It’s not like it would have been particularly difficult to craft the right inquiries. Opponents claimed there is no evidence the surveillance program ever contributed to stopping an attack or capturing a terrorist, while supporters of the surveillance program say in one voice that it is a critical tool in the war on terrorism. But these assertions have rarely led to the obvious follow-up questions – to opponents: how can you be sure this program has been a failure? And to supporters: what evidence do we have that the program has produced results? These questions would evoke a healthy debate.
Instead, most of the media simply repeated the basic talking points of both sides or left their assertions unchallenged. They could have asked supporters to put some flesh on the bones and provide one or more examples of the program working as intended. But they were too busy discussing the delicious political questions they knew would generate lively conversation, and thus presumably better ratings, rather than following up with questions a Journalism 101 student would understand, asking for facts to support their opinions.
The media has, for example, simply reported and left unchallenged a rather radical statement by an anonymous senior administration official: “Whether it’s a period of hours or days, what you’re doing essentially is playing national security Russian roulette.”
As Glenn Greenwald said this past Sunday on CNN:
“If you turn on any major cable network, including the one we’re on, unfortunately, or read any large newspaper, American newspaper, you constantly see reporters giving anonymity to the people they’re supposedly serving as watchdogs over in order to scare the public.”
Administration officials would only go so far as to say they “do not argue the program is solely responsible for arrests or stopping plots, but say it’s been a valuable tool to investigators to identify potential terrorist plots and networks.” Is that assertion not begging for amplification? And is it enough by itself to justify the program without at least a national debate?
No one expects federal officeholders and officials to divulge classified information in defense of the program, but it is hard to believe, especially considering the many impressive conservatives who support the surveillance program, that a credible fact-based case in support of the program could not have been made. That burden of proof was especially large given that the program was hidden from the American people until the revelations of Edward Snowden. But the trashy tone of the conversation was largely the fault of the media, which could have controlled the terms of a responsible debate, but chose instead to bate the politicians to descend into rank political attacks.
Media coverage of politics has always been heavily weighted towards hoopla and horserace and light on substance, but that reality has become more exaggerated than ever by the 24 hour news cycle and the advent of the internet, which means more competition and thus, a ratings-based reality created by the fourth estate.
If we can not count on the media to demand real answers to the question of whether the NSA surveillance program has actually worked, and to investigate the matter thoroughly, how will we ever be able to make informed decisions on critical matters like this involving the tension between liberty and security? Are the only alternatives to drill down on internet searches to small online sites, most of which have their own political agendas?
Much like when the left misuses the commerce clause or the general welfare clause of the constitution to promote the seemingly unlimited growth of government rather than limited and prudent governance, we are weakened as a nation when the media treats the first amendment as a license to set a superficial and income-generating agenda at the expense of their solemn responsibility to hold our public officials to account on critical matters that affect every American.