Byron Calame writes:For the first time since I became public editor, the executive editor and the publisher have declined to respond to my requests for information about news-related decision-making....
At the outset, it's essential to acknowledge the far-reaching importance of the eavesdropping article's content to Times readers and to the rest of the nation. Whatever its path to publication, Mr. Sulzberger and Mr. Keller deserve credit for its eventual appearance in the face of strong White House pressure to kill it. And the basic accuracy of the account of the eavesdropping stands unchallenged - a testament to the talent in the trenches.
So Calame begins with an uncritical assumption: The Times did the nation a great service. His problem is with the explanation for the one-year delay in reporting the link:
Protection of sources is the most plausible reason I've been able to identify for The Times's woeful explanation in the article and for the silence of Mr. Sulzberger and Mr. Keller. I base this on Mr. Keller's response to me: "There is really no way to have a full discussion of the back story without talking about when and how we knew what we knew, and we can't do that."
Taken at face value, Mr. Keller seems to be contending that the sourcing for the eavesdropping article is so intertwined with the decisions about when and what to publish that a full explanation could risk revealing the sources. I have no trouble accepting the importance of confidential sourcing concerns here. The reporters' nearly one dozen confidential sources enabled them to produce a powerful article that I think served the public interest.
With confidential sourcing under attack and the reporters digging in the backyards of both intelligence and politics, The Times needs to guard the sources for the eavesdropping article with extra special care. Telling readers the time that the reporters got one specific fact, for instance, could turn out to be a dangling thread of information that the White House or the Justice Department could tug at until it leads them to the source. Indeed, word came Friday that the Justice Department has opened an investigation into the disclosure of classified information about the eavesdropping.
But none of that explains why the report was ultimately published, Calame observes. He's interested in knowing two things: whether the news could have been revealed back when it could have affected the presidential election and the connection to the publication date of James Risen's book "State of War."
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When Raking Muckrakers Muck Up Their Own Rakes With More Muck Than They Can Shake A Rake At
The public editor should ask the NYT executives why they did not include the following paragraph as the Washington Post did:
"In 1972 the Supreme Court required the president to obtain warrants to eavesdrop on domestic groups but specifically declined to apply this requirement to snooping on foreign agents. Four appeals courts have since upheld presidential authority for such warrantless searches".
I wish people would stop using the phrase "we are at war", or any variant of that. Our government may be "at war", but it's not against whom you think.
Most credible newspapaers have a 'code' that wont allow them to post on a story until it can be substaniated. Otherwise you`re reporting news b4 the news is made. The timely(?) way this was done or reported tell me they were`nt sure. Thats assuming the nyt is a 'credible' source...
Dick has made a comment that I have seen elsewhere too, saying that "the article...outlined just how we were following up on terrorist links" and that "Now...the enemy knows what not to do." I read the original NYT article and have followed the story some since and have somehow missed this specific information.
What exactly do terrorist organizations know now that they did not a month ago? That our intelligence community uses data mining? That when we capture cell phones and other communication records in Afghanistan, we follow up on them? Al Qaeda isn't ten feet tall, but they can't all be as dumb as rocks, either.
While there appears to be some innovation that combines traditional sigint and data mining, I haven't seen it laid out anywhere in detail. I'd be interested in hearing more about exactly how you think the terrorists have benefited from the information published to date.
Stiles: I guess the things we've learned from the program have just been the things they've wanted us to learn. We must be the ones dumb as rocks. I guess we should start living in caves.
Located at NewsBusters.org, in December 9, 1999 James Risen wrote a brief article about the NSA:
HEADLINE: The Nation: Don't Read This;
If You Do, They May Have to Kill You
BYLINE: By JAMES RISEN
Newsbusters
Scroll down for article
(ross) What self-respecting newspaper editor wouldn't?
One who had previously decided it was the wrong thing to do for the past year? The need for the scoop outweighs the national security concerns they thought were important enough to sit on the story for a year?
"There is really no way to have a full discussion of the back story without talking about when and how we knew what we knew, and we can't do that."
I couldn't help mentally completing that sentence with "because what we did was both cynical and illegal."
Yeah, I know it's now commonly accepted that two wrongs do make a right, but...
ChrisO: Your comment is based on the erroneous assumption that no war powers exist except where Congress has "declared" war. In fact, declaring war is an anachronism- we didn't declare war in Korea or Vietnam, for instance. Courts have ruled that Congressional actions such as the post 9/11 authorization give the President the same powers as a formal declaration.
Warrants can only be constitutionally issued on probable cause. That is distinctly different than the standard for a constitutional search, which needs to be reasonable.
If the circumstances are such that a search can be reasonable without the cause being probable, then it can theoretically be simultaneously unconstitutional for a warrant to be issued while, at the same time, it is perfectly constitutional to conduct the search.
Accordingly, it is perfectly possible that the reason the Administration did not get warrants because no court could constitutionally issue them, but the taps were themselves constitutional -- if a search can be reasonable without probable cause.
Which is at least arguable, given there seem to be no on-point precedents on the relation of probableness to the reasonableness of wartime monitoring of suspected enemy personnel.
I'm not interested in having concrete details about the initiative discussed in public if it is that effective, as it could help the terrorists. My point is the NYT stories have not provided detail. Since none of the responses so far to my earlier comment have noted any kind of operational detail that appeared in the stories, I think the point stands.
Stever, I believe the program is probably very effective, for factors that haven't been publicized and are just subject to uninformed speculation. My point is that the coverage, while hitting on the idea that something new is being done that may or may not fit into a legal framework, has not divulged the recipe for the "special sauce."
Brylin, Hinderaker does lay out the case well. However, you will note that he qualifies his argument twice within the post that you linked. Hinderaker is not usually so cautious, which suggests to me that he is well aware that there may (or may not) be more to this than meets the eye.
When the history is written in future decades, my bet is that we will see that the program was neither clearly legal or illegal, but consisted of activities that are not well defined under law yet. While the impeachment folks may be wrong, it may also be the case that some of those defending this as a simple application of FISA may not be giving our intelligence community enough credit for developing new capabilities.
The legal situation is indeed ambiguous. Some of the unclear questions:
Specifically what kind of communications is the NYT referring to in the articles that started this brouhaha?
Is what is being written about in the NYT "electronic surveillance" as defined in FISA?
Does FISA cover communications between and among known alQueda operatives wherever located?
Does FISA trump the President's war powers, or vice versa?
There are more, but there is a lot of speculative legal analysis that assumes the answers to these questions rather than answering them with the precision required for a criminal prosecution.
So Calame begins with an uncritical assumption: The Times did the nation a great service.
I myself think that law professor bloggers like Glenn Reynolds, Eugene Volokh, Hugh Hewitt and yourself do the nation a terrible service when they do in their blog what lawyers best do in court, make the best argument for only one side, and make their best attempt at destroying the arguments of the other side, regardless of their own personal view of the truth of the other side, and regardless of the quality or morality of their arguments.
I believe lawyers do this as they are steeped in the Hegelian Dialectic and their belief in the adversary system.
I believe law professor bloggers do the nation a disservice applying these techniques to the public dialog.
But in the past you have told me well, that that is what lawyers do, and that they are using their massive talents to do so, and I have no complaint.
In that sense, this is the role of the press, to print the truth, regardless of where that truth lay, to press our first amendment rights, and expand on them when they can, well that is their role, and in Calame's POV, by doing so, the Times did the nation a great service.
(They also did the nation a great service in that it is clear that Chimpy McBushitler is breaking the law and attacking the nation once again. The "W" stands for Worst. President. Ever. He is the Dubya of 'Merican Destruction.)
Quxxo, Quxxo, Quxxo, the proper orthography when referring to the President is Chimpy McBu$hHitler, please note, the s must be replaced by the dollar sign, and there should be two 'H's with the H in Hitler being capitalized.
I realize your anger with the current administration (wait, I'm sorry, REGIME) so crosses your eyes and fries your brain that getting details such as this straight becomes difficult, but consistency would be appreciated.
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