(Note: “The Power of the Jump”™ is a semi-regular feature of this site, documenting examples of the Los Angeles Times’s use of its back pages to hide information that its editors don’t want you to see.)
There has been a lot of talk lately about President’s Bush’s secret surveillance program. Some of the more overheated rhetoric starts from the assumption that the program is illegal, and is fueled by angry self-righteousness.
Wouldn’t it be something if many legal experts believed that the program might actually be legal?
Well, guess what? Apparently, they do, according to a story in today’s L.A. Times. But you’d never know it if all you read was the front page. The editors bury the nugget on the back pages, almost as an afterthought.
But wait, you say. Doesn’t that sound, in the abstract, like a newsworthy story, worthy of prominence? I mean, here’s this program that the entire liberal media appears to believe is patently unconstitutional. If the legal experts disagree, shouldn’t that be Page One material?
Sucker! Important stories aren’t important if they help the president! Treating them as important just makes you look like a cheerleader!
The relevant story is on Page One of today’s paper, and is titled Legal Test Was Seen as Hurdle to Spying. The theme of the story is that Bush did an end run around the courts because the legal tests applied by courts might be too stringent:
WASHINGTON — Since Sept. 11, 2001, an obscure but powerful tribunal — the Foreign Intelligence Surveillance Court — has been a solid ally of the Bush administration, approving hundreds of requests allowing government agents to monitor the conversations and communications of suspected terrorists.
So why did the administration go around the court in devising its most secret surveillance program?
Top Bush administration officials said Monday that a controversial domestic eavesdropping program they ordered up after Sept. 11 without the court’s permission reflected the “inefficiencies” of going to a judge and the need for a more “agile” approach to detecting and preventing terrorist attacks.
But they also indicated that they had a more fundamental concern: the tougher legal standard that must be met to satisfy the court. The 1978 law creating the secret tribunal, the Foreign Intelligence Surveillance Act, authorizes intelligence gathering in cases in which the government
[See Intelligence, Page A32]
Do you think Joe and Jane Reader are faithfully turning the pages all the way to Page A32 to read the rest? Or do you think they will be moving on to the story about the closure of Marilyn Monroe’s childhood orphanage?
For the intrepid readers who make it to Page A32, the article cites “growing congressional and public concern” about the secret program, and quotes a law professor asking of presidential power: “Where is the stopping point?” A series of Supreme Court cases that are not on point are cited.
Finally, deeeeeeeeeep down in the story, right above a headline that screams U.S. Spying Plan Lacked Congress’ Scrutiny, Leading Democrat Says, we see this:
Bush and Gonzales also said Congress had authorized such extraordinary measures in the wake of the Sept. 11 attacks. The “Authorization for Use of Military Force” adopted by Congress said the president could “use all necessary and appropriate force” to capture those who planned the attacks and “to prevent any future acts of international terrorism against the United States.” Several legal experts said this was a stronger justification for Bush’s action.
“I think the authorization of use of military force is probably adequate as an authorization for surveillance,” said Cass Sunstein, a University of Chicago law professor.
It’s 22 paragraphs before we get there. The story doesn’t tell us exactly how convincing the experts find this argument, but the quote from Sunstein suggests that at least some of them find the argument pretty convincing. I’m not 100% certain I buy it myself, based on what I know — but then, I’m not a legal expert.
At the very least, the fact that there is a real question out there deserves a hell of a lot more prominence than the editors gave it this morning.
P.S. I mentioned this this morning as part of another post, but I thought it really deserved its own post.