Category Archives: Media

Show Me the Body

Media, Politics

 

Article One, Section 9, clause 2 of the United States Constitution decrees, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  This protection against unlawful arrest and detention is derived from English common law first documented in the “Assize of Clarendon,” a re-statement of rights during the reign of Henry II (1154-1189).  Inclusion in the U.S. Constitution is often attributed to similar language in the Magna Carta.

Habeas corpus (literally “produce the body”) was at the center of cases filed by Guantanamo Bay detainees following the September 11, 2001 terrorist attacks.  In Boumediene v. Bush (2008), the U.S. Supreme Court affirmed the right of foreign combatants to petition for a writ of habeas corpus with some limitations (e.g. the number of petitions allowed).  In the majority opinion for the Court, Justice Anthony Kennedy wrote that an executive suspension of habeas corpus suggests the political branches of government have the ability to “switch the Constitution on or off and would lead to a regime in which they, not this court, ‘say what the law is’.”

In the United States, the length of time a suspect can be held without being charged is covered under state law.  In most jurisdictions, the time frame for either charging or releasing a prisoner is 72 hours.  In a few states, including California, uncharged suspects can only be held for 48 hours.

My exploration of this topic was triggered by FBI Director James Comey’s letter to the chairmen of several congressional committees, informing them of “the existence of emails that appear to be pertinent to the investigation [of Secretary Clinton’s personal email server].”  There was no indication of the nature or extent of the discovery.  In a (non-public) follow-up memorandum to FBI employees justifying the letter to Congress, Comey says, “I also think it would be misleading to the American people were we not to supplement the record.”  Yet in the same paragraph, he gives more information for internal consumption than he does in the public correspondence.

At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression.  In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it.

What does this have to do with the writ of habeas corpus?  While Secretary Clinton has not been physically detained, her reputation and standing as a presidential candidate has been indefinitely “put on hold” by the FBI.  Late yesterday, the Clinton campaign issued what, in effect, is a writ of habeas corpus. It demanded that, within the next two days, the FBI explain the nature of the evidence which the Director felt warranted the letter to Congress.  For different reasons, the Trump campaign has echoed this sentiment.

I have no idea whether the information discovered during an investigation of former Congressman Anthony Wiener’s alleged sexting with an underage female is the smoking gun that will derail Secretary Clinton’s chances of becoming the next president. However, as of this morning, there are several reports which suggest the FBI Director acted more on speculation than evidence.  Newsweek and the Los Angeles Times report “none of the emails were to or from Clinton.”  And some or all may be duplicates of emails already in the FBI’s possession.  Director Comey is also reported as saying he has not personally looked at any of the emails.

The Clinton campaign is rightfully demanding Director Comey “show me the body.”  My question is, “Shouldn’t the head of the FBI be held to the same standard under the Constitution as every other law enforcement officer in the United States?”

For what it’s worth.
Dr. ESP

 

Assange, Can You See

Media

 

This post addresses the difference between spinning the news and yellow journalism. Spin is defined as “news and information that is manipulated or slanted to affect its interpretation and influence public opinion.” (www.dictionary.com)  For example, presidential campaign surrogates, suggesting a $917 billion business loss in one year qualifies as “genius,” are the poster boys/girls for spin.

In contrast, yellow journalism ” is a type of journalism that presents little or no legitimate well-researched news and instead uses eye-catching headlines to sell more newspapers.” (Wikipedia)   The term was first introduced when sensational and unsubstantiated reporting by newspapers such as the New York Journal (William Randolph Hearst, publisher) and the New York World (Joseph Pulitzer, publisher) was used during the Spanish-American War to increase circulation.  Today, yellow journalism is practiced mostly by grocery store tabloids as when the National Enquirer suggested Ted Cruz’s father played a role in John Kennedy’s assassination.

In previous posts, I have focused my frustration about media coverage during this election cycle on CNN and MSNBC and have ignored Fox News.  Why?  Because I expected more from the first two news outlets.  Why get upset when Sean Hannity, the host of one of Fox’s prime-time shows, appears in a Trump campaign ad or is offered as the sole source of the candidate’s otherwise undocumented opposition to the Iraq invasion?  Spin is spin.

However, this morning Fox News and it’s latest partners Wikileaks and True Pundit crossed the line between spin and yellow journalism.  Reporting on Julian Assange’s decision to appear via video at a news conference after claiming he feared assassination, Fox included the following in an article on its website.

Though no recent public revelations directly tie to Assange’s security fears, various U.S. officials and pundits have made threatening statements directed at him in the past. WikiLeaks on Monday tweeted an alleged quote from a 2010 State Department meeting at which then-Secretary of State Hillary Clinton asked if Assange could be killed in a drone strike. That same year, former Democrat strategist Bob Beckel said on Fox News Channel that “a dead man can’t leak stuff.”

Assange also has hinted that deceased DNC staffer Seth Rich may have been a source for WikiLeaks. Rich, 27, was found with multiple gunshot wounds to the back at a Washington, D.C., intersection in July. He died soon thereafter. Authorities believe Rich was the target of a botched robbery, but his death has inspired conspiracy theories.

These are bold accusations and, if true, might reasonably require voters to re-evaluate their presidential options.  However, with one exception, none of the above is substantiated.  The exception is the Bob Beckel quote.  In 2010, in discussing how Wikileaks might endanger U.S. security, he did suggest Assange might be better off dead.  And to their credit, Fox also identified Beckel as a “former Democrat strategist.”  Other conservative and alt-right websites were not so accurate, labeling Beckel as a former Clinton strategist, something he has never been.  For the record, there was bi-partisan condemnation of Beckel’s remarks.  Moveon.org petitioned CNN, for whom Beckel is now a paid commentator,  to fire him.

Just as one bad apple spoils the whole bunch, one kernel of truth does not justify mostly unsubstantiated reporting.  First, the lead sentence refers to “various public officials and pundits.”  Various implies several, yet Beckel is the only documented case.

Second, the only evidence of the alleged Clinton quote comes from an article in the alt-right on-line publication True Pundit.  Yesterday, Wikileaks, as reported in the Fox News story, directed its followers to the story with the following tweet.

assange

The article implied the threat was consistent with a November 24, 2010 email from the Department of State director of policy planning to Hillary Clinton with the subject line “an SP memo on possible legal and nonlegal strategies re wikileaks.”  Here is the text of the email.

Following this morning’s meetings I activated my four legal eagles on the SP staff — Peter Harrell, Jen Harris, Bill Burke White, and Catherine Powell (that includes two law profs and two Yale law grads who certainly could be law profs). They in turn reached out to people at the Berkmann Center at Harvard and other experts, working together with Alec Ross. Alec has been particularly useful in terms not only of his knowledge but also his sensitivity to how anything we might try to do could impact our own internet freedom agenda. The result is the attached memo, which has one interesting legal approach and I think some very good suggestions about how to handle our public diplomacy. AM

As reported by Snopes.com, “The thrust of True Pundit’s article hinged almost entirely on claiming that the term “nonlegal” essentially means the same thing as “illegal.” Dictionary.com defines “nonlegal” as “not related to, qualified for, or phrased in the manner of the practice of law (distinguished from illegal).” A big difference.  All the email suggests is that there may be legal options (e.g. seeking a cease and desist order) and nonlegal options (e.g. media campaign).  The non-threatening nature of any suggestions for nonlegal efforts is affirmed by the use of the term “public diplomacy.”  Finally, the memo includes a warning the department should do nothing that might negatively affect its own efforts to promote “internet freedom.”  It is quite a stretch to imply this email responded to a Clinton suggestion involving assassination of Assange.

Third, the second paragraph undercuts everything Wikileaks and Assange espouse as the justification for the organization’s existence.  They boast they have created a place where individuals can share sensitive information without fear of retribution.  Even hinting who a source might be is a gross violation of that principle.  When Assange raised the possibility Seth Rich might be responsibility for leaking the DNC emails, there was no evidence to substantiate his claim and it made for sensation headlines, the definition of yellow journalism.  Wikileaks is now offering a $20,000 reward for information about Rich’s death. (NBC News, August 10, 2016) I am confident some of the same conspiracy theorists who believe Rafael Cruz assisted Lee Harvey Oswald are claiming the prize based on equally baseless assertions.

Why do I refer to Fox, Wikileaks and True Pundit as partners?  As demonstrated in this case, these three entities use each others reporting to substantiate a story which otherwise lacks evidence.  Why is that dangerous?  Consider the “partnership” between the New York Times and the Bush administration leading up the Iraq invasion.  On September 8, 2002, the Times published a story by Judith Miller and Michael Gordon about the existence in Iraq of aluminum tubes, whose use would be part of Iraqi programs to build nuclear and biological weapons.  That same morning Cheney appeared on Meet the Press and quoted the story to support the justification for a possible invasion of Iraq.  As we learned later, sources for the Times story where the very people who were citing it as evidence of Sadam Hussein’s nuclear ambitions.  Simply put, representatives of the Bush administration planted a story in the Times which they later quote as third-party verification of their concerns about Hussein.

And exactly how did that work out?

For what it’s worth.
Dr. ESP

 

When Money Facilitates Non-Speech

Media, Politics

 

The issue of whether money equals speech came to the forefront in the case Citizens United v. Federal Election Commission (2010) in which the Supreme Court ruled government could not restrict independent political expenditures.  The ruling applied to for-profit corporations, labor unions, non-profit corporations and other associations.

While many people believe Justice Anthony Kennedy’s majority opinion contained the phrase “money is speech,” this is not the case.  In fact, no Supreme Court justice has uttered those exact words.  The closest any member of the Court has come to this statement appears in the following exchange between the late Antonin Scalia and Piers Morgan on the July 18, 2012 edition of the latter’s CNN program.

SCALIA: You can’t separate speech from — from — from the money that — that facilitates the speech.

MORGAN: Can’t you?

SCALIA: It’s — it’s — it’s utterly impossible

There was a moment in last night’s debate in which I found myself agreeing with Justice Scalia (something that I must admit does not happen very often). During an exchange about Donald Trump’s promotion of the birther conspiracy and whether it was racist in nature, Hillary Clinton referred to law suits against Trump for housing discrimination.

But, remember, Donald started his career back in 1973 being sued by the Justice Department for racial discrimination because he would not rent apartments in one of his developments to African-Americans, and he made sure that the people who worked for him understood that was the policy. He actually was sued twice by the Justice Department

Trump responded as follows.

Now, as far as the lawsuit, yes, when I was very young, I went into my father’s company, had a real estate company in Brooklyn and Queens, and we, along with many, many other companies throughout the country — it was a federal lawsuit — were sued. We settled the suit with zero — with no admission of guilt. It was very easy to do.

His explanation bothered me for several reasons.  First, he brings his father into the discussion implying he was just being a dutiful employee.  Second, he uses the excuse everyone was doing it.  Third, it was a “federal lawsuit” as though only state and local discrimination cases are valid.  But it is the last two sentences which made me think about Justice Scalia and Citizens United.  Even if you buy Scalia’s argument money facilitates speech, it does not relieve you of exceptions to the first amendment’s guarantee of free speech.  You cannot pay the theater manager to give you the right to yell “fire.”  You cannot buy media time and commit libel.

Settling a discrimination case out of court may relieve you of certain legal responsibilities, e.g. producing documents, depositions, testifying in court and publicly admitting culpability.  It does not, however, imply innocence.  Just the opposite.  The settlement represents compensation for damages.  If there were no damages, why settle?  Isn’t that the argument Trump now makes for NOT settling law suits involving Trump University?

On that basis, the Scalia/Morgan exchange could be paraphrased as follows.

SCALIA: You can’t separate a non-verbal admission of culpability from — from — from the money that — that is used to settle a law suit.

MORGAN: Can’t you?

SCALIA: It’s — it’s — it’s utterly impossible.

I rest my case.

For what it’s worth.
Dr. ESP

 

Who’s Fault Is That

Media

 

As America prepares to watch the first of the presidential debates, the media has spent most of the last three days discussing strategies and how the expectations for each candidate will affect public perception of who wins and loses.  Not that anyone should be surprised by this.  But it does suggest the media has learned absolutely nothing in the past two weeks.  Just 10 days ago, all three cable networks were lamenting how the Trump campaign had played them with his 30 minute infomercial about the new Trump Hotel in Washington, D.C. Trump had promised a major announcement about his five year campaign to discredit President Obama’s status as a United States citizen.

On the September 18 edition of CNN’s Reliable Sources, a panel of media “experts” including Carl Bernstein complained Trump officials had advertised the event as a “press conference.”  Instead, after Trump’s 37 second terse and inaccurate assessment of his role in the birther conspiracy, he left the stage without any opportunity for attending reporters to question him.  As part of the discussion, the show’s host Brian Stelter had the following exchange with CNN political reporter Jeremy Diamond.

STELTER: So, do you find yourself, I’m going to put on the spot here — do you find yourself struggling to figure out how to cover this kind of campaign, but not a normal campaign, a campaign where there are more misstatements than usual, where it feels like we’re being played sometimes by Trump?

DIAMOND: Well, I’ve been doing so for 15 months. So, at this point, I think I’ve gotten used to it to a certain extent.

STELTER: OK.

In other words, what Diamond admitted was Trump was controlling the narrative and there is not much the media can about it.

Are you kidding me?  Who owns the microphones?  Who owns the cameras?  Who decides what goes over the airwaves and what doesn’t?  In his book The 7 Habits of Highly Effective People, the late Stephen Covey divides situations into two circles:  concern and influence.  The circle of concern includes those elements over which you have no control and one should not waste energy trying to change them.  Focus should be on elements within the circle of influence where the individual or organization can control the situation.  Candidate’s access to free air time is absolutely within the networks’ circle of influence.

Later in the conversation, Stelter and Diamond continue:

STELTER: Jeremy, talking about control briefly, what could be done differently? Give us an idea what have could be done differently.

DIAMOND: I mean, it’s hard to say, you know, at this point. I think that reporters are trying as hard as they can to continue to ask tough questions, to continue to press Donald Trump, to continue to force this campaign to really do more press availabilities, you know?

After 15 months of being jerked around, you have no ideas?  Then I have a couple.  First, fire Diamond and his colleagues and hire reporters and executives at CNN who do have ideas about how to stop being played by candidates and their surrogates.

Second, CNN and the other networks could say to both candidates they will NO LONGER show campaign events live.  If the candidates give reporters an opportunity to question them about the content of their speech, they will then show both the event and the follow-up Q and A.  If candidates want time to voice unchallenged statements, they should have to pay for it.

The next time you hear someone in the media complain about their ability to cover political candidates, just remember, they have no one to blame but themselves.

For what it’s worth.
Dr. ESP

 

 

Tennessee, Tennessee, Tennessee

Media, Politics

 

Many of you will remember the picture on the right of NBC News political director Tim Russert and his now-famous, low-tech white board.  Early in the evening, Russert predicted the 2000 election would hinge on the outcome in Florida.  And after weeks of recounts and legal challenges, everyone was congratulating Russert for his foresight.

There’s just one problem.  The election should never have come down to Florida.  The Sunshine State only mattered because Democratic candidate Al Gore lost his home state of Tennessee by four percentage points.  And unlike Florida, where Nader and a poorly designed Broward County ballot contributed to George W. Bush’s margin of victory, the three independent candidates–Ralph Nader, Harry Brown and Pat Buchanan–tallied just 1.3 percent of the total vote.  In other words, the people who knew him best, rejected Gore in 2000.  Flip the Volunteer State’s 11 electoral votes and Gore carries the electoral college 277 to 261 even after losing Florida.

In 2004, Garrison Keillor suggested, during Prairie Home Companion’s annual joke show, John Kerry had a similar problem.  “People outside the Northeast don’t know Kerry, and people from the Northeast know him too well.”  Whether this was a factor in the election is not important.  What Tennessee voters and Keillor are telling us is maybe we should pay more attention to people who have real experience with presidential candidates.

Which brings us to 2016 and a fairly unique situation.  For the first time since 1940 when Franklin Roosevelt ran against Wendell Willkie (though born in Ohio, Willkie lived in New York at the time of the election), both major candidates reside in the same state.  This is only the fourth time in the history of presidential elections this has been the case.  And they are more than mere residents.  Hillary Clinton served New York as U.S. Senator for eight years.  And the Trump Organization headquarters are located in Manhattan and most of his early real estate projects were built in the tri-state region.

So what are Empire State voters telling us.  Remember, when he announced his candidacy, Trump boasted he was going to flip New York which is among the bluest of the blue states in presidential elections.  Yet the average of 30 polls in New York show Clinton with a 17.3 percent lead as of September 21.  Why is this important?  According to Nate Silver’s 538 Now-Cast, if the election were held today, Clinton would win with 280 electoral votes to Trump’s 250.  And the pundits will be focused on Ohio and Florida.  But the fact is the outcome would be reversed if Trump carried his own state.  If New York’s 29 electoral votes shifted to the Trump column, the final tally would be 279 for Trump and 251 for Clinton.

Only twice in American history has a candidate lost his home state and still won the presidency–James K. Polk in 1844 and Woodrow Wilson in 1916.  There’s probably a good reason for that.

For what it’s worth.
Dr. ESP