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The AP phone records scandal has suddenly made elite media concerned about government spying - over a decade after it started.

Cross posted from Pruning Shears.

We've had three big stories this week, each showing how the right plays the scandal game better than the left.  Of the three, one is a non-scandal (Benghazi), one is a minor scandal with the potential to turn into more (IRS),1 and one is an honest-to-God scandal right now (AP).  Republicans don't bother with such fine distinctions though, and that's why they are better at playing it than Democrats: when they get something they can run with, they do.

The targeting of Tea Party groups by the IRS is a good example.2  It was wrong of the IRS to target them, but at the end of the day what it all amounted to was more paperwork and delay.  It's much less onerous - and much less overtly political - than the actual audit the IRS did of the NAACP when it was critical of George Bush.

Yet the Democrats basically sat on their hands for that, and the best they can muster now is a weaksauce "oh yeah?  Well why weren't you outraged back then, GOP?"  Republicans stand up for their allies in real time - they don't sit back and watch them get pummeled.  They don't quietly file those episodes away, holding them as examples to be thrown back as countercharges down the road if need be.  They seize the moment and take as many swings as they can.

Similarly, the business with the AP has Republicans once again schooling Democrats on this not-difficult-to-grasp aspect of politics.  Any Democrats tempted to decry some Republicans' newfound concern over the surveillance state should reflect instead on why their own party declined to weigh in as forcefully during the Bush years.3

It isn't even worth pointing out that all these trips to the fainting couch are hypocrisy because the right was silent on it during the Bush years.  They don't pretend to adhere to a logically consistent set of principles; they just want to go after Obama.  He wasn't president in 2004, so they weren't concerned then.  Now he is, so they are.  

The righteous indignation of media outlets, on the other hand, is a bit hard to take.  There's been a great deal of hyperventilating about how this is such a big deal because of its chilling effect on the press, and in case you hadn't noticed the press is singled out in the First Amendment for protection!.  Of course, in that very same clause - and before the press is mentioned, incidentally - the First Amendment prohibits abridging freedom of speech for anyone.4

And there's certainly been a lot of free speech abridgement going on for the last twelve years!  It isn't hard to find, say, a catalog of sins produced by the Patriot Act (personal favorite), or reports on the wholesale seizure of ordinary citizens' phone records (and by the way, Congress would have to grant retroactive immunity to the phone companies who cooperated with the AP seizure for the current episode to sink to the lows of the FISA Amendments Act), or the indiscriminate collection of Internet traffic, or the thuggish repression of media outlets that are not the right kind of nice, respectable media outlets.5

These kinds of outrageous abuses have been going on for years, yet the national press corps never bothered to rouse itself to the kind of adversarial pushback we are now seeing.6  It's one thing to spy on the common rabble or disreputable operations like WikiLeaks, evidently, but when that treatment gets turned on reporters who thought they were comfortably embedded with government officials: First Amendment!

I've been reading The Operators by Michael Hastings, and one passage towards the end has a striking relevance in the current situation.  He describes the fallout in Washington over his Rolling Stone article on Stanley McChrystal which resulted in McChrystal's dismissal.  He refers to a "schmoozy relationship" between the political and media class and the icy reception he received from journalists in the capitol.  Apparently he violated some vague but powerful etiquette that requires journalists to not report anything newsworthy (extended excerpt here.)

The rule of thumb is: don't make waves.  You'll have a good gig as long as you don't rock the boat.  But that is exactly what the phone record seizure does.  It's a rude awakening for any reporters who thought they were on the same team as the officials they cover.  The bureaucratic inertia of an ever-expanding intelligence gathering apparatus has combined with this administration's maniacal pursuit of leakers to produce a very serious breach of etiquette in the village.  It may have been illegal, who knows, but it was unquestionably gauche.  It upset some very comfortable relations.  That, in the end, may be a greater transgression among media elites than any violation of the Constitution.


1.  If the story is this: a couple of employees in the bowels of the agency went rogue and even disobeyed orders to stop, the story ends there.  If it was the result of a general atmosphere of improvisation throughout the agency in an effort to figure out the post-Citizens United rules of the road, there's a little more to it.  If senior officials were leaning hard on those down the chain of command to audit political opponents, we have a full blown scandal.  Investigate it fairly and thoroughly, and let the chips fall where they may.

2. Also, the IRS and the ATF seem to be particularly loathed by the right, so any scandal involving those agencies is pretty much guaranteed to send the outrage meter among conservatives to white hot levels.

3. If you want to know how someone like Rand Paul manages to get traction on the left with a stunt like his filibuster, it's at least partly because liberals have waited for over a decade for Democrats to make a big deal - at the relevant moment - on the issue.  Many on the left have been desperate for anyone to take an appropriately visible and compelling stand.  Refusing to engage might foster comity in Washington, but it frustrates the hell out of the base.  And Republicans are more than willing to fill the political vacuum it creates.

4. Not to go all strict constructionist on you, but I'm always struck at how infrequently First Amendment controversies directly bear on the actual text of the amendment itself:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The AP/DOJ scandal is a good example.  The First Amendment just covers the prohibition of Congress passing laws establishing a religion or preventing citizens or the press from expressing dissent.  It doesn't say anything about the Department of Justice spying on media outlets, for instance.  The First Amendment prohibits a fairly narrow range of behavior considering all the different ways the government can try to suppress unwelcome sentiment.  I'm happy for the more expansive interpretation, but I'm always expecting someone to argue that the founders intended exactly the more limited reading of the text.

5. Will Bunch:

It is yet another example of how the national security state that has dominated our political life since World War II has corrupted the American  soul. It is exactly what Philadelphia's own Benjamin Franklin tried to warn us about -- trading liberty for security, and getting neither.
"Slippery slope" arguments are highly dependent on the framework they would have to exist in.  Those who argue against, say, gay marriage because it would put us on the slippery slope towards polygamy (or whatever deviant vision is plaguing kinkmeister Rick Santorum these days) need to explain something: How does that happen using the model gay marriage activists used?  What lobbying group is pushing for it and is trying to get legislatures to pass it?  Who is putting it on the ballot with citizen initiatives?  Anyone who wants to use the gay marriage model for some other kind of arrangement isn't even raising awareness on the issue at the moment.  And that is square one for any legislation-based effort.

On the other hand, the slippery slope Bunch describes is a much more realistic danger, because none of it is in the open and there is no transparency.  When everything is happening in the shadows and out of public view, the slopes can get slippery pretty darn fast.

And incidentally, systems like that also tend to take on lives of their own.  Which means the "outrageous abuse of power by an intelligence agency" scandal will be a more or less permanent feature of every presidency going forward, since the dark government operates independently of the visible government.

6. In the early stages of a story like this it might not matter who exactly approved the seizure.  As more details come out, and as time passes, the major players may well patch things up and kiss and make up.  If there's plausible deniability in the right places and an appropriate scapegoat can be found I'm sure everything will get smoothed over.  Still, an aggrandized surveillance state will naturally produce scandals like this from time to time.  With no real oversight or regulation, it will inevitably gravitate towards broader and more audacious seizures.

7. From pp. 329-30 of The Operators:

I'd run into politicians and government officials and they'd all tell me they liked my reporting.  Maybe they were lying, or trying to bullshit me, I didn't know.  While living in Vermont, I hadn't understood the exact nature of the official Washington freak-out.  But once I arrived in DC and started going to the cocktail parties and hitting the bars, I saw how the political and media class had completely misinterpreted my piece.  The story had terrified them, striking deep-seated fears in the Washington psyche.  It demonstrated just how tenuous one's own position could be - careers could flame out overnight.  And the political and media class saw the story as a threat to their schmoozy relationship - their very existence and social life.  If you can't get wasted with a journalist who's writing a profile of you and piss all over the president who appointed you, what's the world coming to?

A number of famous journalists would say they heard these kinds of things all the time, but never reported them.  It didn't matter to them that I was on assignment to write a profile - I didn't go to France and Kandahar on a social engagement.  It didn't seem to make a difference that I hadn't violated any agreement with McChrystal.  The unwritten rule I'd broken was a simple one: You really weren't supposed to write honestly about people in power.  Especially those the media deemed untouchable.  Bash Sarah Palin all you want, but tread carefully when writing about the sacred cows like McChrystal and Petraeus.  You're supposed to keep ill myths going.  I'd fucked up - I wasn't to be trusted because I tried to tell the truth.  At one event, a prominent Republican senator pulled me aside and said, "You know, your story was a good thing.  Got everybody focused back on Afghanistan."

Strangely, as I continued to report on the politics behind the scenes of the war, I ended up on pretty good terms with a number of military officials, White House officials, and State Department officials.  It was the other journalists who covered the military and politics that I clashed with most often.  A number of reporters had paid side gigs at defense-industry funded think tanks, essentially getting financial support from the very same people they were supposed to be covering.  They seemed to take my criticism of the military-industrial complex personally.  It might as well be called, I thought, the media-military-industrial complex.

I could understand why the government officials would be pissed; I was telling them their whole strategy was a waste of time.  But the reaction from a number of journalists on the national security beat seemed pretty twisted.

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