When governments acquire emergency powers during wartime, it's with the understanding that the crisis is finite and that when the war ends the government will relinquish those powers. But what happens when a government defines its war as neverending, as the Bush administration has its so-called "war on terror"? As long as any jihadist anywhere threatens the West, the administration would have us believe, we must trust it and remain in a wartime crouch.
The current conflict will soon conclude its fifth year, making it longer than the war against Japan. Most of the temporary powers in the PATRIOT Act that had been scheduled for "sunset" were extended, and the administration has conjured secret powers not directly spelled out by legislation. The New York Timesrevealed one such example of administration overreach last December when it reported the secret NSA surveillance program. Two weeks ago the New York Timesand the Los Angeles Timesreported—over administration objections—the secret sifting of SWIFT bank transaction data by the CIA and Treasury Department, which the White House justifies under 1977 economic sanctions legislation.
In reporting the SWIFT story, both papers rejected the White House assertion that disclosure was improper. The president and the vice president condemned both papers, and an exploding carbuncle masquerading as a member of Congress called upon the attorney general to investigate the New York Times under the Espionage Act, the Comint Act, and "other relevant federal criminal statutes."
Of course, overriding a presidential request doesn't make New York Times Executive Editor Bill Keller and Los Angeles Times Editor Dean Baquet traitors. The whooping by the administration and its allies, however, does signal the breakdown of the traditional comity—I wouldn't call it "trust"—that has existed between the White House and the press. Since the end of WWII, the press has sought White House input whenever its reporters bumped up against issues of national security, and if the press has erred it's mostly erred in favor of the government position. For a good summary of recent instances in which the two Timeses and the Washington Post have held stories or deleted sensitive information at the administration's request, see Keller and Baquet's joint op-ed from last week defending publication of their SWIFT stories.
If the press isn't being reckless, then why the breakdown? Why now?
The Keller-Baquet op-ed explains how the process ordinarily works: Publications approach the White House when they have sensitive stories about classified programs and ask for comment. "And if they want to argue that publication represents a danger to national security, we put things on hold and give them a respectful hearing. Often, we agree to participate in off-the-record conversations with officials, so they can make their case without fear of spilling more secrets onto our front pages," they write.
In an open society such as ours, it's up to the White House to convince the editors not to publish. I claim no inside knowledge about why talks between the administration and the Timeses cratered. Gauging from the White House's fury, I suspect that it either failed to make a plausible case for keeping the program secret or didn't want to make a case.
If the administration failed to make the case, my guess is that it's opted to mask its failure by fouling relations with the press. If it didn't want to make the case, its petulance would be understandable if not forgivable. The press has been running the table against the administration when it comes to publishing stories about classified programs. A couple of weeks before the SWIFT revelations broke, Washington Post Associate Editor Robert G. Kaiser catalogued a variety of scoops that I bet an all-power Bush administration would have liked to suppress in the name of national security—the Abu Ghraib outrages; the United States' rendition of terrorism suspects to countries where torture is commonplace; its secret prisons in Eastern Europe; the NSA's eavesdropping without warrants; and the surreptitious harvesting of phone logs, just to name the big ones. A couple of those stories were published after head-butting conversations between the press and the White House, so you know the White House has to be angry.
Whatever its mood, the administration may have found it politically expedient at this juncture, just before the fall elections, to cultivate a domestic perception that the New York Times is as much an enemy as al-Qaida. This assumes, of course, that the administration hasn't cast the press as the enemy from the beginning. There's no better illustration of Bush's disdain than former Chief of Staff Andrew Card's 2004 comment to The New Yorker's Ken Auletta that the press "don't represent the public any more than other people do. … I don't believe you have a check-and-balance function."
I'm no fan of the PATRIOT Act, but at least Congress approved it and its extensions. As Stephen Chapman of the Chicago Tribune wrote Thursday, Congress "took pains to fit [the PATRIOT Act] within established laws and Supreme Court decisions. It required judges to sign off on the use of various investigative tools." He continues, "critics can take consolation that it paid deference to the constitutional separation of powers, to established precedents on presidential prerogatives and to the value of open debate."
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