By Andrew L. Roth, with Sarah Maddox and Kaitlyn Pinson
The suspension of habeas corpus for “any person” by the 2006 Military Commissions Act, as reported by Robert Parry and Thom Hartman, was Project Censored’s top-ranked story of 2006-2007. Habeas corpus protects individuals against unlawful exercises of state power; it is so fundamental to the United States that the Framers wrote it into the Constitution, establishing that it could only be suspended “in cases of rebellion or invasion.” Identifying habeas corpus as the greatest security to “liberty and republicanism” contained in the Constitution, Alexander Hamilton drew insight from the eighteenth-century British legal scholar Blackstone, who championed habeas as a protection against the “dangerous engine of arbitrary government.”
Civil rights activists, constitutional law experts, and the public have been outspoken in their criticisms of the Military Commissions Act (MCA). For example, in analyzing how it “purports to confer rights that, upon close inspection, prove illusory,” one legal scholar concludes that the Act is “an exercise in misdirection. It is, in a word, ‘Orwellian.’” Deceptive though its language may be, the Act’s political significance is straightforward, as Michael Dorf concludes: ”It is difficult to imagine a greater denial of individual liberty than the prospect of indefinite executive detention without recourse to the judiciary.”
To what extent have the corporate media done an adequate job of informing the public about the Military Commissions Act? William Parry and Thom Hartman’s stories earned the #1 spot in Project Censored’s 2006-2007 rankings precisely because corporate media were not adequately covering the MCA and, in particular, its suspension of habeas corpus. Parry and Hartman’s reportage reveals both (a) how little the corporate media do to inform the public about the Act’s sweeping implications and that (b) good reporting can convey the necessary understanding to a lay public, despite the Act’s Orwellian logic. Furthermore, in reporting on the Act’s suspension of habeas, Parry noted that “the public’s lack of a clear understanding of the law’s scope has undercut efforts to build a popular movement for repeal or revision of the law” (Censored 2008, p. 39).
Inspired by Parry and Hartman’s work, and committed to the belief that habeas corpus for all persons is a cornerstone of democratic government, we examined subsequent newspaper coverage of the Military Commissions Act to determine how adequately the corporate news media fulfills its inter-connected functions as: (1) a watchdog against abuse by those in positions of power, (2) a source of substantial information for citizens about social and political issues, and, (3) a forum in which diverse opinions are communicated to others. In this chapter, we examine three fundamental causes for the public’s lack of understanding and consequent inaction:
(1) a continued deficit in coverage of the Military Commissions Act by corporate news media, compounded by
(2) reliance on a narrow range of sources in stories that do report on the MCA, resulting in
(3) the framing of public discourse about the Act as legitimate controversy, rather than the unconstitutional, counter-democratic law that it is.
MEDIA STANDING AND SPHERES OF CONSESUS, CONTROVERSY, & DEVIANCE
Media scholars pay attention to the role that news sources play in the construction – and slant – of news stories. Following the research of sociologist William Gamson, we use the term media standing to refer to who gains status as a regular media source, including especially those whose claims and views journalists quote directly. According to Gamson, media standing is “a measure of achieved cultural power”: Journalists grant media standing to individuals and organizations because these sources are understood to
speak as or for serious players in any given policy domain: individuals or groups who have enough political power to make a potential difference in what happens.
Typically journalists bestow the cultural power of media standing on sources whose official, bureaucratic statuses already establish them as “serious players” due to their political power. Thus sociologists who study news production typically conclude that elites are both “the sources and subjects of most political stories” because, for journalists, “‘news’ is about what those in power say and do.”
By treating news as primarily, if not exclusively, a matter of what the powerful elite say and do, corporate news media provide the public with distorting perspectives on crucial issues, in at least two ways. First, and most obviously, by affording media standing to a partial range of sources, news media can convey a false sense of consensus. Second, and perhaps less obviously, by presenting a narrow range of competing perspectives, news media can convey a sensation of robust debate – even as such coverage functions to define narrowly the limits of acceptable political debate.
In his influential study of US media during the Vietnam war, Daniel Hallin conceptualized three spheres of news coverage, (1) the sphere oflegitimate controversy, in which journalists seek conscientiously for balance and objectivity, (2) the sphere of consensus, in which journalists take for granted shared values and assumptions, and (3) the sphere of deviance, in which journalists understand themselves as authorized to treat marginal figures or positions without regard for the conventional professional commitments to balance or objectivity.
Where journalists adhere most closely to professional norms of balance and objectivity, they contribute to the definition of the story, or the issues the story addresses, as matters of legitimate controversy. One way journalists accomplish this is by quoting multiple, often competing sources to represent “both sides” of an issue, a standard practice for achieving “balance.” In doing so, journalists contribute to the framing of the issue as one outside of shared consensus, but worthy of serious news coverage.
Though this might seem to exemplify how a free press ought to function in a democratic society, this scenario is not always ideal. Most relevant for the purposes of this study, if individuals or groups come to (re)frame the protections afforded by habeas corpus — which US political leaders and the American public have historically treated as a matter of fundamental consensus — as subject to political debate, then the suspension of habeas corpus is repositioned as a (potentially) legitimate legal and political act.
Informed by Gamson’s conception of media standing and Hallin’s model of spheres defining consensus, controversy and deviance, we examine newspaper coverage of the Military Commission Act to determine how broad a spectrum of perspectives on the Act the Los Angeles Times, New York Times and Washington Post present, and whether these papers treat the Act as a matter of consensus, legitimate controversy, or deviance.
DATA AND METHODS
Our data consist of news stories in the Los Angeles Times, New York Times, and Washington Post between 17 September 2006 and 17 November 2007. We selected these three newspapers as exemplars of corporate news media; and we chose the date range to span the time between one month before the Military Commissions Act became law (on 17 October 2006) and one month after the first anniversary of its passage.
Using Lexis/Nexis Academic and Proquest Newstand, we searched for all print news references to the Military Commissions Act in the three newspapers during that period. Our search generated 189 records, comprised of 76 items from the New York Times, 62 from the Washington Post, and 51 from the Los Angeles Times. We excluded a number of these items from analysis because they were not news stories (e.g., editorials, opinion pieces, and letters to the editor) or they were news stories that made only passing reference to the MCA. This left us with a data collection of 75 relevant news stories (36 from the L.A. Times, 21 from the Post, and 18 from the N.Y. Times).
Following prior work on “media standing,” we were most interested in how each article identified its news sources and whom journalists quoted directly. Thus our unit of analysis is the individual quotation. The 75 stories in our data collection include 237 direct quotations. We coded each quotation for its source identification using the following categories: legal (with subcategories for lawyers, judges, constitutional rights advocacy organizations, and professors), congress, executive, military, other government officials, human rights advocacy groups and other source types, a residual category.
We also coded each quotation for its position toward the Act (pro, con, or neutral) and whether it made explicit reference to habeas corpus or not. In determining each quote’s position toward the Act, which involves some subjective judgment on the coder’s part, we sought to minimize ambiguity by restricting use of the “pro” and “con” categories to quotations that clearly took one position or the other. All other quotations were treated as “neutral.” We only coded quotations as making reference to habeas corpus if the source referred to it by name, synonym (e.g., “the great writ” or “the writ”) or pronoun (e.g., “it,” as employed in the phrase “referred to it,” in this sentence).
Finally, we coded for the location in the newspaper (i.e., front page or not) of the story in which each quotation appeared. This last coding category gives an imprecise but useful measure of the quotation’s prominence. The measure is ‘imprecise’ because we cannot determine the exact location of specific quotations based on electronic reproductions of the original newsprint stories. The measure is useful, nonetheless, because front-page stories are more likely to attract the reader’s attention.
Working as a team to code the data, we sought to develop coding categories that required a minimum of subjective interpretation. We met regularly to compare coding decisions and to refine our shared sense of how to code ambiguous, “borderline” cases. When tested, this effort paid off with a high degree (93.5%) of inter-coder reliability. Even our most difficult, subjective category — position toward the MCA — yielded a solid 82.2% inter-coder reliability score. Thus, we report the findings that follow with strong confidence in their reliability.
The range of source types quoted in stories about the MCA is typical of conventional news coverage: It reflects the strong journalistic bias for sources with official, bureaucratic statuses. Table 1 summarizes our findings regarding whom the three newspapers treated as newsworthy sources of quotations. The legal category accounts for nearly a majority (49%) of the 237 quotations in our data collection. Government officials (including representatives of the executive and congressional branches) constituted the next largest (28%) source category. Within this category, Congress accounted for 14%, the executive branch accounted for 5%, and other government officials (e.g., State Department officials) accounted for 9% of the total quotations in our data. Spokespersons for human rights advocacy groups — such as Human Rights Watch, Amnesty International, Human Rights First, and the International Council of the Red Cross — contributed 9% of the quotations.
TABLE 1. Distribution of Quotations by Source Type
Source Type Quotes Total (%)
Legal 115 49
Government 67 28
Military 23 10
Human Rights 22 9
Other 10 4
TOTAL 237 100
*Government category excludes military sources
Notably, in the Other category, we found just a single instance of a direct quotation attributed to a detainee: Describing Salim Hamdan as a “ambassador of sorts for frustrated detainees,” the New York Times quoted him as saying, “There is no such thing as justice here,” during a war crimes court hearing.
The preponderance of quotations by legal sources warrants a closer look at this category, as provided in Table 2.
TABLE 2. Distribution of Quotations by Legal Sources
Source Type Quotes Total (%)
Detainee Lawyer 28 24
Judge (non-military) 26 23
Professor 23 20
ACLU/CCR * 12 10
Military Lawyer 10 9
Other Lawyer 6 5
Attorney General 5 4
Military Judge 3 3
Other 2 2
TOTAL 115 100
*CCR refers to the Center for Constitutional Rights
Detainees’ legal counsel were the most frequently quoted subcategory of legal sources (24%), followed closely by non-military judges (23%) and law professors (20%). Spokespersons for the Center for Constitutional Rights and the American Civil Liberties Union accounted for 10% of the legal category.
Though detainees almost never achieved media standing in our data, journalists frequently quoted their lawyers. Notably, a majority of the quotations attributed to judges, and many of the quotations attributed to lawyers, derived from transcripts of legal proceedings.
The preceding distributions give a clear picture of who achieved media standing. Overwhelmingly, the three newspapers we examined treated legal experts and political officials as the most frequently quoted source types. Next we turn to examine the positions of these quoted sources toward the Military Commissions Act itself.
WHAT POSITIONS DO SOURCES TAKE ON THE MCA?
We were initially surprised to find that most of the quoted sources (43%) in our data collection expressed opposition to the Military Commission Act in one way or another; and just 22% of the quoted sources expressed support for the Act, as summarized in Table 3:
TABLE 3. Distribution of Quotations by Position on Military Commissions Act
Position Quotes Total (%)
Opposes MCA 102 43
Neutral 82 35
Supports MCA 53 22
TOTAL 237 100
We had expected that quoted sources would split evenly between support for and opposition to the Act, reflecting journalists’ commitment to the objectivity norm of “balance.” Instead, by nearly a 2-1 ratio, quoted sources spoke in opposition to the Act, which might be interpreted as evidence of the newspapers fulfilling their “watchdog” role. This interpretation is complicated, however, by looking in more detail at variation in the degree of criticism expressed in these oppositional quotations. To exemplify this point, consider the similarities and differences between the following two quotations:
1) ”Navy Lt. Cmdr. Charles Swift, Hamdan’s defense attorney, said the Military Commissions Act ‘demonstrates once again that if you put a statute together in three weeks and rush it through … you end up with a process that doesn’t work’” (Los Angeles Times, 5 June 2007, ellipses in the original)
2) ”‘Habeas corpus was recklessly undermined in last year’s legislation,’ said Sen. Patrick J. Leahy (D-VT.), the [Judiciary] committee’s chairman, referring to the Military Commissions Act. ’I hope the new Senate will reconsider this historic error and set the matter right’” (Los Angeles Times, 8 June 2007)
Both quotations identify the sources in terms of their official statuses, quote those sources directly, and the quotations themselves express criticisms of the Act. By contrast, however, the first quotation expresses what might be understood as a limited criticism: The “process doesn’t work” because it was put together hastily. Insofar as this comment registers a criticism of the Act, it is one with a relatively ready remedy, namely slower, more careful revision of the statute. By contrast, the second quotation assesses “last year’s legislation” (i.e., the MCA) as having “recklessly undermined” habeas corpus, and Leahy’s call for the Senate to “set the matter right” can only be understood, in context, as a call to fundamentally revise the Act by restoring habeas corpus. The second quote is, in sum, a more fundamental criticism of the Act.
Qualitative analysis of the quotations that referenced habeas, such as the previous quotation from Senator Leahy, led us to employ references to habeas corpus as indicators of more fundamental critiques of the Military Commissions Act. We sought to determine how often quoted sources invoked habeas corpus. Table 4 summarizes our findings on the frequency with which quoted sources invoked habeas corpus.
TABLE 4. Distribution of Quotations by Invocation of Habeas Corpus
Invocation Quotes Total (%)
of Habeas 193 81
Mentions Habeas 44 19
TOTAL 237 100
Overwhelmingly the sources quoted in our data do not mention habeas corpus (81%): Just 19% of the quotations refer to it, by name, synonym (e.g., “the writ” or “the great writ”), or pronoun (e.g., “it,” where the pronoun clearly linked to a prior reference to Habeas).
Does the position of the quoted source toward the Military Commission Act bear any significant relationship to the source’s likelihood of mentioning habeas corpus explicitly? Based on qualitative analysis, we expected that the MCA’s opponents would be more likely than supporters to mention Habeas. The data (summarized in Table 5) confirm our expectation of a strong correlation between position on the MCA and reference to habeas corpus.
TABLE 5. Position on Military Commissions Act and Invocation of Habeas Corpus
Position on MCA Mention Habeas No Mention Total
Support MCA 6 (11%) 47 (89%) 53 (100%)
Oppose MCA 26 (25%) 76 (75%) 102 (100%)
We found a 14% difference between mentions of habeas corpus by position on the MCA, a difference of considerate importance. (A chi-square test yields a p-value of .031, well within the conventional standard [.05] of statistical significance.)
Quoted sources’ invocations of habeas corpus typically represented the strongest critiques of the Military Commissions Act. (Recall, for example, Leahy’s characterization of it as “reckless”). These quotations raised fundamental questions about the counter-democratic consequences of the Act and its questionable constitutionality.
By contrast, supporters of the MCA seldom referenced habeas corpus. The following two instances may be treated as exemplary. The first comes from a news story that recalled an exchange in January 2007, between President Bush’s nominee for Attorney General, Alberto Gonzales and Senator Arlen Specter, during Gonzales’ confirmation hearing:
3) ”Gonzales responded by suggesting the Constitution does not protect habeas corpus at all. ’The fact that the Constitution—again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away.’” (Los Angeles Times, 30 January 2007)
The article went on to report Specter’s challenging response (e.g., “‘Now wait a minute,’ Specter interrupted, ‘The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus?’”) and to report other legal scholars’ positions on Gonzales’ assertion (e.g., “‘He is completely wrong on the history,’ said Eric freedman, a Hofstra law professor and expert on habeas corpus.”).
A second case: In December 2007, Solicitor General Paul Clement urged the Supreme Court to uphold the federal appeals court’s February 2007 decision that detainees had no constitutional rights in the first place. Clement argued that the MCA provided detainees more access to judicial review than afforded by habeas corpus:
4) ”‘This is the remarkable liberalization of the writ, not some retrenchment or suspension of the writ,’ Mr. Clement declared.” (New York Times, 6 December 2007).
To describe the tribunals established by the MCA as a “liberalization” of habeas corpus echoes the Orwellian “doublespeak” of the Act itself.
In sum, then, we proceeded by treating invocations of habeas corpus as indicators of the strongest critiques of the MCA. Their relative scarcity in our data, despite the preponderance of quotations expressing opposition to the MCA suggest that the newspapers we studied were not providing their readers with as full a range of the critical perspectives on the Act as existed. Subsequent analyses build on this finding.
HOW PROMINENTLY PLACED ARE CRITIQUES OF THE MCA?
We hypothesized that quotations expressing support for the MCA would be more likely to appear in prominently located stories (i.e., in front-page stories) while quotations expressing opposition to the Act would be more likely to appear in less prominently located stories (i.e., in stories not originating on the front page). However, our data do not support these hypotheses. Of 49 quotations from stories originating on a newspaper’s front page, 53% expressed opposition to the MCA, and 27% voiced support for it. (The remaining 20% were neutral.) Of 188 quotations from stories not originating on the front page, 41% expressed opposition to and 21% voiced support for the Act (with 38% neutral).
Three aspects of these findings are important. First, stories originating on the front page are more likely to feature quotations that take a definite position (i.e., pro or con), accounting for 80% of the “front-page” quotes but just 62% of the quotes in stories not originating on the front page. This correlation makes sense in the context of news values, where the clash of competing views on a contentious social issue probably contributes to an editor’s sense of the story’s appeal to readers and, hence, its deserving more prominent placement. Second, as previously noted, quotations expressing opposition to the Act appear more frequently in stories that originate on the front page, by a difference of 12% (i.e., the percentage difference of 53% and 41%).
Third, and finally, before concluding that the prevalence of oppositional quotes in prominently positioned stories constitutes evidence of thenewspapers’ oppositional stance, note that (a) quotations supporting the MCA are also more likely to appear in stories originating on the front page, by a difference of 6% (i.e., 27% – 21%), and (b) we found little difference between front-page and other stories in the frequency with which quotations invoked habeas corpus. Of quotations from front-page stories (N=49), we found 16% that mentioned habeas, compared with 19% of the quotations from stories not originating on the front page (N=188). The slight difference (3%) in mentions of habeas corpus by story location is most likely a product of random variation. What is significant, though, is that the greater proportion of oppositional quotes in prominently placed stories didnot yield an increase in the frequency with which quoted sources invoked habeas corpus. Since we understand references to habeas as indicative of more fundamental criticisms of the MCA, this finding suggests that, although the newspapers in our data gave prominent placement to quotations critiquing the MCA, those critiques were not the most fundamental ones. This dynamic contributes to the overall frame established by the papers in covering the Act: namely, the appearance of healthy debate, including frequent — albeit relatively superficial — criticism of the Act and its consequences.
THE 2006 ELECTION AS REFERENDUM
Many pundits, and perhaps also the American public, oriented to the November 2006 mid-term elections as a referendum on the Bush Administration’s policies in general and its “Global War on Terrorism” in particular. Thus, we sought to determine whether the corporate media were more likely to afford media standing to critical perspectives on the Military Commissions Act after the Democrat Party’s convincing November victories. We found this to be true, as Table 6 documents:
TABLE 6. Position on Military Commissions Act Before and After 2006 Election
Time Period Support MCA Oppose MCA Total
Before Election 16 (46%) 19 (54%) 35 (100%)
After Election 37 (31%) 83 (69%) 120 (100%)
Compared with the period before the election, quotations expressing opposition to the Act increased by 15% in the period after the election. Before the election, the newspapers in our data presented an almost evenly divided spectrum of expert opinion on the merits of the MCA, with a slight tilt toward critique (54% opposed versus 46% supportive). After the election, the 15% increase in sources critical of the Act shifted the balance strongly toward opposition (69% opposed versus 31% supportive). Consistent with our prior findings, this post-election increase in the percentage of quotations opposing the MCA might be interpreted as evidence that the newspapers, spurred by public opinion, roused to fulfill their role as “watchdogs” against governmental abuses of authority. Unfortunately, a secondary analysis cautions against any hasty embracing of this conclusion. As before, we use explicit references to habeas corpus as our indicator of more serious critiques of the MCA. Comparing mentions of habeas, before and after the election, reveals no significant change, as evident in Table 7:
TABLE 7. Mentions of Habeas Corpus Before and After 2006 Election
Time Period Mention Habeas No Mention Total
Before Election 10 (20%) 41 (80%) 51 (100%)
After Election 34 (18%) 152 (82%) 186 (100%)
In fact, there was a very small (2%) decrease in the frequency of quotations that referenced habeas corpus after the 2006 election. This difference is much too small to rule out the possibility of random variation as the best explanation.
Combining the findings summarized in Tables 6 and 7, we conclude that although the newspapers in our data did increase the number of quotations opposing the MCA after the 2006 elections, this did not result in an equivalent increase in fundamental critiques of the Act. Consistent with our prior findings, the coverage gives the appearance of healthy, legitimate political debate, with the balance shifting toward an oppositional perspective after the elections – but with no more room for critiques that frame the Act, with its unconstitutional suspensions of habeas corpus, as beyond the pale of legitimate political debate.
The patterns of corporate newspaper coverage identified in this study provide an important contribution to understanding why the US public continues to lack a strong grasp of the Military Commissions Act’s significance. Our examination of 237 direct quotations regarding the Act, drawn from three major newspapers over a 15-month period, lead us to conclude that, although the papers present critical perspectives on the Act:
1) these oppositional quotations only infrequently invoke the most fundamental criticisms against it, including especially its suspension of habeas corpus for “any person,” and
2), ironically, in this context, the relative balance of supportive and critical quotations contributes to the framing of public discourse about the Military Commissions Act as a matter of legitimate controversy.
Should the suspension of habeas corpus, historically a pillar of western democratic government, be subject to the type of political debate — not to mention journalistic coverage — usually reserved for mundane partisan politics? Does presenting it that way fulfill the functions of a free press in a democratic society, including the media’s responsibility as watchdog, information source, and forum of diverse public opinion?
Blackstone warned against secret, indefinite government detention without recourse to judicial review as a “a dangerous engine of arbitrary government.” Extending his metaphor, we understand news coverage of the type analyzed in this chapter as oiling the dangerous engine. Incomplete coverage of the (full range of critical) perspectives on the MCA, framed in a context of legitimate controversy, keeps the public inadequately informed and thus aids a powerful elite in their efforts to extend governmental authority at the expense of individual liberties.
If the American public is to mount an effective, popular movement for repeal of the Military Commissions Act, it must first understand the Act. As this chapter shows, two crucial steps in that direction are, first, to expand the scope of sources whom journalists treat as worthy of media standing, to include more frequently those who will voice fundamental critiques of the Act; and, second, drawing on Hallin’s theoretical model, to reposition public discourse about the Act’s suspension of habeas from the sphere of legitimate controversy to the sphere of deviance, because habeas corpus is a cornerstone of American law. Its affirmation as such is all the more important in the context of the current administration’s unconventional, unlimited “Global War on Terrorism.”
 See Chapter Two, Censored Déjá Vu, in this volume for an update on “No Habeas Corpus for ‘Any Person.’”
 See, e.g., Jonathan Hafetz, “Ten Things You Should Know about Habeas Corpus,” Brennan Center for Justice, New York University School of Law, White Paper, 2007; accessed online:http://www.nimj.org/documents/HabeasPaperFinal.pdf
 Michael C. Dorf, “The Orwellian Military Commissions Act of 2006.” Journal of International Criminal Justice 5 (2007): 10-18; quotes at p. 10.
 ibid., p. 18.
 For a critical discussion of the functions of the free press, see David Croteau and William Hoynes, By Invitation Only: How the Media Limit Political Debate, Monroe, ME: Common Courage, 1994; especially pp. 10-22.
 This section extends prior work by Andrew Roth and Emilie Vander Haar, “Media Standing of Urban Parkland Movements,” City & Community, vol. 5, no. 2 (June 2006):129-151.
 William Gamson, “Media and Social Movements,” pp. 9468-9472 in International Encyclopedia of the Social Sciences, edited by N.J. Smelser and P.B. Baltes. Amsterdam: Elsevier Science, 2001; quotes at p. 9471.
 Robert Entman and David Paletz, “Media and the Conservative Myth,” Journal of Communication, vol. 30, no. 4 (1980):154-165; quote at p. 164
 Croteau and Hoynes, op cit; quote at p. 177.
 See, for example, Croteau & Hoynes’ groundbreaking study of television news, By Invitation Only, op cit.
 Daniel Hallin, “The Uncensored War”: The Media and Vietnam. New York: Oxford University Press, 1986. See also, Stuart Hall, “A World at One with Itself,” pp. 85-94 in The Manufacture of News, edited by S. Cohen & J. Young. Beverly Hills, CA: Sage, 1973; esp. p. 88.
 See, e.g., Robert Entman, “Objectivity, Bias, and Slant in the News,” pp. 30-38 in Entman, Democracy without Citizens, New York: Oxford University Press, 1989.
 A chi-square test of this distribution yields a p-value of .051, a hair’s breadth short of the conventional standard (.050) of statistical significance: Put another way, it is extremely unlikely that the observed distribution is the product of random variation in the data.