On the February 1 broadcast of National Public Radio's Morning Edition, NPR national desk reporter Martin Kaste purported to offer the views of "constitutional scholars watching" the case involving the American Civil Liberties Union's (ACLU) challenge to the Bush administration's warrantless domestic wiretapping program. But the only source he quoted as a "constitutional scholar"was Douglas Kmiec, and the only identifier Kaste gave for him was as a law professor at Pepperdine University. Kaste made no mention of the numerous prominent legal scholars who take the plaintiffs' side against the government in the case, much less provide any "constitutional scholars" who disagree with the specific issue that Kmiec was addressing. Nor did Kaste mention any of several other pertinent facts: that Kmiec defended the wiretapping program in February 2006 testimony before the Senate Judiciary Committee, that he held a position in the Reagan and George H.W. Bush administrations as assistant attorney general in charge of the Justice Department's Office of Legal Counsel, or that he endorsed Alberto R. Gonzales for attorney general.
Kaste was reporting on January 31 oral arguments before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, which is considering the government's appeal of a district court decision declaring the warrantless wiretapping program unconstitutional. Kaste presented comments on the case from ACLU associate legal director Ann Beeson and from former Reagan Justice Department official Victoria Toensing, who Kaste noted was "sympathetic to Gonzales." Kaste then stated that "[c]onstitutional scholars watching the ACLU case say the government is actually in a strong position," and introduced Kmiec. According to Kaste, Kmiec said "that even if the appeals court doesn't declare the case moot, it may throw it out on other grounds, such as the state secrets privilege" and "that's probably the right legal decision." Kaste did not mention that other "constitutional scholars watching the ACLU case" disagree with Kmiec regarding the state secrets privilege, nor did Kaste mention that many other legal scholars disagree with Kmiec's ultimate legal conclusion that the government should prevail in the case.
Kaste also did not mention that Kmiec has previously defended the legality of the administration's warrantless wiretapping. In a February 28, 2006, statement to the Senate Judiciary Committee, Kmiec said he "affirm[ed]" the administration's legal claims -- that President George W. Bush had the legal authority to wiretap without the court orders generally required under the Foreign Intelligence Surveillance Act (FISA) -- as "constitutionally reasonable, practically justified and necessary."
Kmiec was also reportedly considered by Bush for a seat on the U.S. Court of Appeals for the D.C. Circuit, widely regarded as the second-most prestigious court in the country.
In addition, Morning Edition host Renée Montagne, in her introduction to Kaste's report, called the warrantless wiretapping program the "Terrorism Surveillance Program," which is virtually identical to the administration-preferred moniker, the "Terrorist Surveillance Program." As Media Matters for America has explained, that name far understates the huge net reportedly cast by the program: According to reports in The New York Times and The Washington Post, the program has monitored the communications of thousands of people with no relationship to Al Qaeda.
From the February 1 broadcast of NPR's Morning Edition:
MONTAGNE: The Bush administration is asking a federal court in Cincinnati to dismiss a lawsuit against the Terrorism Surveillance Program. That's the eavesdropping program that generated so much controversy about a year ago, when the administration acknowledged it was tapping domestic communications without the usual court orders. The revelation triggered dozens of lawsuits, but now the government argues the issue is moot. NPR's Martin Kaste reports from Cincinnati.
KASTE: Two weeks ago, Attorney General Alberto Gonzales told the Senate that the eavesdropping program will now fall under the authority of the special secret court set up in the 1970s by the Foreign Intelligence Surveillance Act, or FISA. But that doesn't satisfy the critics.
Ann Beeson is an attorney for the American Civil Liberties Union. The problem, she says, is that the attorney general is submitting to the authority of the FISA court voluntarily.
BEESON: He should not be the one that gets to decide when he follows the law.
KASTE: Beeson was in Cincinnati yesterday trying to save the ACLU's lawsuit over the surveillance program. She scored a victory last summer when a federal judge in Detroit ruled the warrantless wiretapping unconstitutional and ordered it shut down.
That case is on appeal, but now the government has moved to dismiss it altogether, in part because of Gonzales' statement. The government says the issue is now moot, but Beeson says, no it's not, not as long as the attorney general still believes in principle that the executive branch can tap phones without a warrant.
BEESON: It's not even a matter of hoping that he won't go outside again; it's that he has himself claimed the right to violate the law again whenever he sees fit.
KASTE: Inside the courtroom, the three-judge panel seemed to sympathize with this concern. Judge Ronald Gilman pressed the government's lawyer, Gregory Garre, on this very point.
KASTE: In fact, distrust of the administration's motives is running high in Congress too. The Senate Judiciary Committee has been pressuring Gonzales to be more forthcoming about just what sort of oversight the FISA court is exercising. Yesterday, he agreed to supply Congress with more details, in secret.
Victoria Toensing, a former Reagan Justice Department official sympathetic to Gonzales, says this level of skepticism is uncalled-for, especially now that the FISA judges have been brought in.
TOENSING: You have a situation here now, where you have, not just the executive branch saying "Trust us." You now have the judges having oversight.
KASTE: Constitutional scholars watching the ACLU case say the government is actually in a strong position. Douglas Kmiec, a law professor at Pepperdine, says even if the appeals court doesn't declare the case moot, it may throw it out on other grounds, such as the state secrets privilege. He says, that's probably the right legal decision, but --
KMIEC: -- that doesn't mean the issue should go away.
KASTE: Kmiec says the question of whether to update the Executive branch's surveillance powers in an age of high-tech data gathering is still something that needs to be addressed by Congress.
Martin Kaste, NPR News, Cincinnati.