NY Times Indicts, Prosecutes and Convicts Bush

If there was any doubt that the New York Times thoroughly despised President Bush, the last shreds were erased yesterday. In an editorial entitled 'Spies, Lies, and Wiretaps,' the Times presented a case against the Bush administration with similar gusto as it might attack an organized crime family and it's Mafia Don. Assuming it had already received an indictment, the Times then prosecuted its case, and acted as both judge and jury to seal a conviction.

The piece began with a subtle reference to Woodward and Bernstein's famous Watergate expose All the President's Men, while ignoring the female members of the administration, in particular, the current Secretary of State. Apparently, the opportunity to link the President to Watergate trumps the normal  feminist rhetorical orthodoxy requiring recognition of both men and women if even one woman is present in a group:

'A bit over a week ago, President Bush and his men promised to provide the legal, constitutional and moral justifications for the sort of warrantless spying on Americans that has been illegal for nearly 30 years. Instead, we got the familiar mix of political spin, clumsy historical misinformation, contemptuous dismissals of civil liberties concerns, cynical attempts to paint dissents as anti—American and pro—terrorist, and a couple of big, dangerous lies.'

After these opening remarks, the prosecution built its case. It began by discrediting what it perceived was lie number one committed by the defendant, President Bush:

'Sept. 11 could have been prevented. This is breathtakingly cynical. The nation's guardians did not miss the 9/11 plot because it takes a few hours to get a warrant to eavesdrop on phone calls and e—mail messages. They missed the plot because they were not looking. The same officials who now say 9/11 could have been prevented said at the time that no one could possibly have foreseen the attacks.'

The prosecution here is either deliberately or incompetently missing a couple of simple facts. First, when defendant's representatives were stating that no one could have foreseen the 9/11 attacks, this was indeed prior to the creation of this terrorist surveillance program. Moreover, once the program was created, as it was secret until prosecution criminally decided to out it, there would have been no strategic reason for the defendant or any of his representatives to hint of its existence. Unfortunately, blind hatred appears to be shielding the prosection from such logic.

The prosecution continued with what it believed was lie number two:

'Only bad guys are spied on. Bush officials have said the surveillance is tightly focused only on contacts between people in this country and Al Qaeda and other terrorist groups. Vice President Dick Cheney claimed it saved thousands of lives by preventing attacks. But reporting in this paper has shown that the National Security Agency swept up vast quantities of e—mail messages and telephone calls and used computer searches to generate thousands of leads. F.B.I. officials said virtually all of these led to dead ends or to innocent Americans. The biggest fish the administration has claimed so far has been a crackpot who wanted to destroy the Brooklyn Bridge with a blowtorch — a case that F.B.I. officials said was not connected to the spying operation anyway.'

Objection your honor. Prosecution here is trying to enter into the record information emanating from news reports that were not identified during discovery and depositions. As such, we ask that this entire remark be struck from the record, and that the jury be advised to thoroughly ignore it.

The reality is that what the New York Times has reported up to this point has been called into serious question by the defendant and his representatives, including the deputy director of National Intelligence and the former director of the NSA, Gen. Michael Hayden, just this past Monday. As such, the Times here is introducing its own opinions as fact.

The prosecution continued with what it believed was lie number three:

'The spying is legal. The secret program violates the law as currently written. It's that simple. In fact, FISA was enacted in 1978 to avoid just this sort of abuse. It said that the government could not spy on Americans by reading their mail (or now their e—mail) or listening to their telephone conversations without obtaining a warrant from a special court created for this purpose. The court has approved tens of thousands of warrants over the years and rejected a handful.'

The prosecution here is thoroughly ignoring previous administrations that have made exactly the opposite case, including the Clinton administration in Congressional hearings in 1994. Moreover, it is ignoring previous precedents established by courts including the SCOTUS, as well as a key appeal that was filed against the FISA court in 2002 regarding this very subject. Finally, the prosecution is making its case prior to the Grand Jury — in this instance, the Senate that is about to have hearings on this issue — determining such illegality.

Lie number four was filled with nothing but supposition and innuendo:

'Just trust us. Mr. Bush made himself the judge of the proper balance between national security and Americans' rights, between the law and presidential power. He wants Americans to accept, on faith, that he is doing it right. But even if the United States had a government based on the good character of elected officials rather than law, Mr. Bush would not have earned that kind of trust. The domestic spying program is part of a well—established pattern: when Mr. Bush doesn't like the rules, he just changes them, as he has done for the detention and treatment of prisoners and has threatened to do in other areas, like the confirmation of his judicial nominees. He has consistently shown a lack of regard for privacy, civil liberties and judicial due process in claiming his sweeping powers. The founders of our country created the system of checks and balances to avert just this sort of imperial arrogance.'

There is some interesting hypocrisy in this final sentence concerning checks and balances that clearly eluded the prosecution. First, there was Congressional oversight over this program inasmuch as high—ranking members of Congress from both sides of the aisle were apprised of the program's creation by the defendant and his representatives, and regularly apprised of its ongoing activities. Moreover, the next check will come in Congressional hearings on the subject. As such, prosecution is once again trying to convict before a crime has been determined to have occurred.

Moving on to what it believed was lie number six, the prosecution made an interesting contradiction by making a bold Constitutional assumption:

'War changes everything. Mr. Bush says Congress gave him the authority to do anything he wanted when it authorized the invasion of Afghanistan. There is simply nothing in the record to support this ridiculous argument.

'The administration also says that the vote was the start of a war against terrorism and that the spying operation is what Mr. Cheney calls a 'wartime measure.' That just doesn't hold up. The Constitution does suggest expanded presidential powers in a time of war. But the men who wrote it had in mind wars with a beginning and an end. The war Mr. Bush and Mr. Cheney keep trying to sell to Americans goes on forever and excuses everything.'

The contradiction here is obvious. On the one hand, the prosecution has been arguing that the defendant has no authority to issue warrantless wiretaps. Yet, it admits that 'The Constitution does suggest expanded presidential powers in a time of war.'

But, prosecution tries to eliminate this power by suggesting that there should be some limit on how long a war ensues. Unfortunately, the Constitution doesn't give us any idea of how many years this should be. As such, it is assumptuous on the part of the prosecution to glean the length of such limit, and preposterous to ask the court to apply one arbitrarily.

In lie number seven, the prosecution commits another interesting contradiction:

'Other presidents did it. Mr. Gonzales, who had the incredible bad taste to begin his defense of the spying operation by talking of those who plunged to their deaths from the flaming twin towers, claimed historic precedent for a president to authorize warrantless surveillance. He mentioned George Washington, Woodrow Wilson and Franklin D. Roosevelt. These precedents have no bearing on the current situation, and Mr. Gonzales's timeline conveniently ended with F.D.R., rather than including Richard Nixon, whose surveillance of antiwar groups and other political opponents inspired FISA in the first place. Like Mr. Nixon, Mr. Bush is waging an unpopular war, and his administration has abused its powers against antiwar groups and even those that are just anti—Republican.'

Prosecution here, while complaining about being damaged by an omission by one of defendant's representatives, is committing an omission itself. On the one hand, the Times feels that it was inappropriate for said representative to not mention President Nixon in his pleadings. Yet, the Times wasn't concerned about the representative not mentioning what the Clinton administration had to say about the president's 'inherent authority' in such matters. Why is that?

Having presented its case, the prosecution instructed the court — in this case, the Senate that is about to hold hearings on this matter — how it should rule:

'The Senate Judiciary Committee is about to start hearings on the domestic spying. Congress has failed, tragically, on several occasions in the last five years to rein in Mr. Bush and restore the checks and balances that are the genius of American constitutional democracy. It is critical that it not betray the public once again on this score.'

Given the specious and groundless nature of the prosecution's pleadings, defendant asks that charges be immediately dismissed, and that the court instruct prosecution that it should follow its own advise and stop betraying the public's trust by continually convicting people in its publication before they've been charged with a crime.

Noel Sheppard is an economist, business owner, and contributing writer to the Free Market Project.  He is also contributing editor for the Media Research Center's NewsBusters.org.  Noel welcomes feedback.