I Was Wrong, CJR Was Misleading, and We All Missed the Bigger Story
After my last post about the Columbia Journalism Review’s post on Friday lamenting that most of the media was missing the story on Obama’s disturbing reliance on the so-called “state secrets privilege”, CJR staff writer Clint Hendler, who wrote that Friday post, wrote me to tell me that I’d actually mis-read his story. He wasn’t saying that the media wasn’t covering the state secrets story, he says; he was just saying that they weren’t covering the particular story of the Justice Department’s filing of one particular legal brief on a Friday afternoon in one particular state secrets case.
In fact, Hendler’s right. After reading his post more carefully, I can see that he was talking specifically about the government’s filing in the case of* Jewel v. NSA *– which, in fact, I wrote about last week.
Still, the headline — “Obama and State Secrets? Shhh…” — strongly suggested that he was talking more broadly about the lack of reporting on the state secrets controversy. And here’s the lead: “Obama, like Bush, decides to limit what the courts and the people can know about warrantless wiretapping. Isn’t that a big story?”
In fact, here at TWI, we (and others) have been covering in depth the Obama administration’s invocation of the state secrets privilege in warrantless wiretapping cases, with particular emphasis on the first such case to come before a court during the Obama administration, known as Al-Haramain Islamic Foundation v. Obama.
Hendler does go on to discuss the Jewel case, which involves a suit against the NSA. And he’s right that the filing in that case has gotten a bit less attention than the two earlier cases — one involving extraordinary rendition and torture, the other involving warrantless wiretapping — where the Obama administration made precisely the same argument. (Hendler notably neglects to mention the coverage of those cases and the broader state secrets issue.) My own view is that it’s a bigger news story the first (and second) time the argument’s made, but maybe a little less newsworthy the third time. That might be why the New York Times didn’t run the story either.
In any event, here’s how Hendler presents the story of the Jewel filing:
…on Friday, [the Obama Justice Department] sought to have the case dismissed by relying, in part, on a broad reading of a legal principle oft invoked by the Bush department, that the federal government could essentially stop legal proceedings by claiming that any litigation of the case would reveal state secrets.
This is a big deal, but so far the story has received little light outside of generally liberal leaning portions of the media.
Salon’s Glenn Greenwald almost certainly deserves sole credit for advancing the story thus far…
Now I don’t mean to drag this out, but that read to me (and to my two editors) like CJR was saying that this is the first time the Obama administration — rather than “the Bush department” — was making this claim, that the claim is shocking, and yet the news media is ignoring it.
What’s more, Greenwald, it seems to say, “deserves sole credit for advance the story thus far” seems logically, to me, to refer to the story of the Obama DOJ invoking “a broad reading of a legal principle oft invoked by the Bush department, that the federal government could essentially stop legal proceedings by claiming that any litigation of the case would reveal state secrets.”
But as I said in my previous post, I’ve already written more than 15 times about the Obama administration invoking the argument. Admittedly, I only wrote about it in the context of the Jewel case once, and I waited until Eric Holder made a public statement to Katie Couric about the DOJ’s position on the state secrets doctrine.
In fact, Clint could have called me — and others in the media — legitimately on something even more important, which many of us really have not given the attention it deserves. The difference between the Jewel case and the two previous cases is not that the Obama administration is initiating the argument rather than just continuing it from its predecessors, which isn’t* *a very substantive difference; it’s that the Electronic Frontier Foundation is claiming in Jewel that the warrantless wiretapping program at issue is not just a program of the Bush administration, but that it’s ongoing under the Obama administration.
In other words, the Obama administration now appears to be using the state secrets privilege to cover up its own allegedly illegal conduct, not just that of its predecessor.
Now that’s an under-reported story.