Behavioral scientists long-ago determined that, when it comes to changing behavior, positive reinforcement works better than punishment.With that in mind, this column has made it a point to record those [rare] occasions on which the Today show gives 'fair & balanced' treatment to the news. Let the record therefore show that on December 19th, 2005, Today gave reasonably even-handed treatment to the revelations that President Bush has authorized, without court order, the surveillance of phone calls suspected of being Al-Qaeda-related.There were two outside guests. Katie first interviewed Attorney General Alberto Gonzales. She asked the obvious question: "What legal authority does the president have to avoid the normal process of obtaining court-approved search warrants before eavesdropping is conducted?"Gonzales' answer was two-fold: 1. The 'inherent authority' of the president under the constitution as Commander-in-Chief to conduct intelligence. Black's Law Dictionary defines 'inherent powers' as 'powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grants'.2. The authorization to use military force passed by Congress just days after 9/11.Couric's follow-up: "If the Foreign Intelligence Surveillance Act of 1978 requires you to get a special court to review warrants in a matter, why not do that, why not follow that rule of law?" Gonzales: "The Foreign Intelligence Surveillance Act does require a court order except where Congress otherwise gives authorization. We believe Congress has given that other authorization in this case. That act was passed in 1978, changes in technology have been dramatic. We need to be able to use other tools to act more quickly."Gonzales emphasized that "this is not a program of domestic spying. One party to the call has to be outside the United States and we have to have a reasonable basis to believe that one of the parties to the call is a member of Al-Qaeda, related to Al-Qaeda or somehow helping our enemy defeat the United States."NBC reporter David Gregory then interviewed President Bush's chief critic on the surveillance issue, Senator Russ Feingold [D-WI]. Gregory's opening question tracked the logic of Gonzales' justification for the program. Gregory quoted from the post-9/11 congressional resolution giving the president "all necessary and appropriate force in the war on terror," and asked "so why isn't the surveillance program consistent with that resolution?"Feingold condemned the program as "an outrageous power grab. Nobody thought when we passed a resolution to invade Afghanistan and fight the war on terror that this was an authorization to allow a wiretapping against the law of the United States."Gregory appeared unsatisfied by the answer, and essentially put Gonzales' 'inherent authority' argument to Feingold: "But does the president as Commander-in-Chief have a right to wage war and to employ means in the pursuit of that war?" When Feingold began to answer, saying the President had no right to act against the laws of the United States, Gregory cut him off energetically. "This was limited", he exclaimed, "to persons speaking in the US to persons overseas having some connection to Al-Qaeda."Gregory then hit Feingold with a question based on common-sense rather than legalisms:
"But Senator, don't you think a lot of Americans are listening to this debate and saying 'why wouldn't the President do this after 9/11?' If the 9/11 Commission concluded that the real problem in the US before the attacks was that the government was out of synch in terms of sharing intelligence, sharing information, why wasn't this exactly the kind of thing the president should do?"
Feingold again claimed a lack of legal basis for the president's actions. "They're trying to make this president a king. It's absolutely shocking." He called Gonzales' justifications "absurd."Feingold concluded on an ominous note: "in 23 years as a legislator myself, I have rarely seen a situation where I'm more sure that the president has done something wrong here." Considering that those 23 years covered the period of Bill Clinton's impeachment and Senate trial . . .Katie then brought in Tim Russert to score the debate. When Russert posed the issue in terms of why the administration undertook the surveillance without getting court orders, Couric emphatically put him on the spot:"Well, why do you think, why do you think, Tim?"Russert: "Obviously the president decided post-September 11th it could not wait for anything, and going to a judge at that time would be a hurdle that would be detrimental to trying to grab onto the information."Couric asked yet another question seemingly exalting common sense over a legalistic approach:
"At the same time Tim, is this going to be a case of a debate by legal analysts and constitutional scholars versus Americans who say civil liberties are important but we don't want another September 11th?"
Russert conceded the point: "That is exactly right."Katie did end the surveillance discussion by displaying on-screen a quote she handily had available from the late Supreme Court Justice Lewis Powell to the effect that freedoms can't be guaranteed if surveillance is conducted solely within the discretion of the executive branch.Even so, both Couric and Gregory gave the administration a fair shake, essentially pitting common sense and the imperatives of war against the program's critics more legalistic approach.