January 1, 2006

NYT Public Editor calls NYT explanation of its decision to report on the NSA link "woefully inadequate."

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."


Meade said...

When Raking Muckrakers Muck Up Their Own Rakes With More Muck Than They Can Shake A Rake At

dick said...

My first disagreement is whether in fact the article DID serve the public interest. I am of the opinion that serving the public interest was the last reason for publishing the article and that it did not serve the public interest at all, especially when the article was published while we were at war and outlined just how we were following up on terrorist links. Now that the enemy knows what not to do, just how are we to stop them initiating more actions against this country and against the young soldiers who are fighting the battles around the world.

It is all very well for the NYT to sit there and preen themselves on breaking a news story but when it comes at the cost of one of our biggest assets in the war on terror the price paid is far too high IMNSHO. I get the impression that this editor knows it and is trying to peddle the company story but not very successfully. The sooner the investigation fixes on who let this out and why and then stops further leaks that can cause this level of damage the better. The NYT is not above reproach and should be made to pay for the damage they caused this country and its people but of course that is something they will never admit to themselves.

brylin said...

Jay Rosen, a professor of journalism at NYU, has an interesting post on this subject.

Art said...

You just can't please some people.
I got slammed by a poster here who argued that the NY Times couldn't have known about the NSA eavesdropping prior to the election because the left wing media conspirators would obviously have preferred it to be the scandal o' the day instead of Bush's military records.

Now Ryan Simberg over at transterrestrial.com (citied on instapundit) is arguing that since the NY Times did know, they were trying to help Kerry's campaign by not mentioning it since Kerry wanted to look tough on national security.

It all fits together. Wheels within wheels, my friend, wheels within wheels.

brylin said...

The Instapundit link is here.

Jake said...

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".

Ricardo said...

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.

Ross said...

Plainly, it's all about the book, but the paper's honchos don't want to confess to being driven by such prosaic motives as protecting turf.

Risen's book was going to be published this month. We can assume it will have all the information published in the Times' articles and much more. Since all the information was going to be made public anyway -- and the book was in the hands of another publisher, the Times, to my knowledge, had no control over it -- the paper chose to print its reporter's work before Simon & Schuster did.

What self-respecting newspaper editor wouldn't? Imagine the discussions if all of this information dug up by the NYTimes reporter came out without first having been reported in the NYTimes.

Mickey said...

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...

Stiles said...

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.

SteveR said...

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.

bearbee said...

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

Scroll down for article

Goatwhacker said...

(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?

DaveG said...

"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...

brylin said...

President Bush, from PowerLink:
"If al Qaeda is calling you, we want to know why. I think that's reasonable."

Hard to argue otherwise, right?

John Hinderaker explains why this program is legal and outside the scope of FISA.

dick said...

There is a difference between thinking something is so and knowing it is so. As an example we were getting info from cell phones in Afghanistan. The papers published that fact and all of a sudden the terrorists stopped using cell phones. My point was that the terrorists might have thought that we were data mining and checking phone calls but no public statement was made concerning that. Now the NY Times publishes that we were data mining phone calls from outside the US to inside the US as well as outside the US to outside the US. It is now a known fact from the source and the terrorists know it for sure.

What benefit is it to our war effort for the NY Times to publish this? In fact it is detrimental to our war effort. And for the person who said who were we at war with, this effort was helping us find exactly who we were at war with. We already know we are at war with the terrorists in Iraq. The tapping would tell us who they were depending on to supply them and those people would also become enemies. Now that is taken away thanks to leakers and the media. I am sure our troops in the field are grateful to the media for making their jobs harder and more dangerous than they already are and also dredging up more support for the enemies of the Iraqi people who are just now trying to form a government. Good going, NY Times!! Knew we could count on you!!

ChrisO said...

dick, your post is fundamentally dishonest, and reflects the spin the administration would like us to believe. Who ever said we can no longer tap phones? There were plenty of mechanisms in place to legally tap phones, but the administration chose to do it in a manner that is arguable extralegal. And if the law as written wasn't sufficient, the adminitration could have petitioned to have the law broadened. When has the Congress refused to do so? Instead, they use the dubious argument that "we didn't think the law was constitutional, so we ignored it," or variations of that. Like it or not, we are not in a declared state of war. The war on terror is war on a tactic, one that has been used by everyone from the IRA to Zionists. As much as George Bush likes to put on bomber jackets and declare himself a "wartime President," he's not. The WH rationale for the whole "Mission Accomplished" fiasco was that the military takeover of Iraq was complete, and we are now in the occupation phase. So apparently we're not at war in Iraq. If Bush is a war time President, then Eisenhower was a wartime President during the entire Cold War, when we had a much more established and dangerous for with nuclear missiles aimed at all of our major cities. Every President's a wartime President under these criteria. This is another example of hysterical fearmongers who always seem to think the answer to a crisis is to erode civil liberties.

Fundamentally, it comes down to how much you trust the Bush White House to have free rein to do what they want outside the Constitution. I trust them not at all.

And as for "As an example we were getting info from cell phones in Afghanistan. The papers published that fact and all of a sudden the terrorists stopped using cell phones" I assume you're talking about the famous bin Laden satellite phone story, which has been shown to be completely false. bin Laden stopped using his satellite phone the day after we sent Cruise missiles into his camp. The guy may be a lot of things, but he's not stupid. He figured out how we had located him. How unusual for Bush to tell a story that's not quite true in order to bolster his position.

I'd still like a concrete example of how the terrorists have been strengthened by the NSA revelations. The story is about the Administration not following proper channels, not about the fact that they're eavesdropping. How stupid do you think the al Qaeda guys are, anyway?

And finally, this statement "If al Qaeda is calling you, we want to know why. I think that's reasonable."

"Hard to argue otherwise, right?" is a perfect example of the kind of obfuscation we're talking about. It is hard to argue against that. So get a warrant and listen to your heart's content.

Aspasia M. said...

ChrisO said:
So get a warrant and listen to your heart's content.

The burning question remains:

Why doesn't the Bush administration get warrants for these calls? Why doesn't the administration get warrants after the fact if time is an issue?

brylin said...

ChrisO: It is fundamentally dishonest to demand a concrete example of how the terrorists have been strengthened by the NSA revelations.

The information is classified and revealing classified information is a crime.

You don't believe it's a crime? Check this out: 18 U.S.C. 793(d).

There is no exemption from this law for the New York Times, and Risen, Lichtblau, and perhaps Keller and Sulzberger will enjoy some jail time unless they reveal their sources. Remember Judith Miller?

Worried about the potential for NSA abuse?

Ever heard of the Intelligence Community Whistleblower Protection Act of 1998? Look at Title VII of Public Law 105-272 (it's near the bottom). Congress addressed the concern for abuse while balancing it with the need to preserve secrets. Summarily, go to the Inspector General first, then go to the Congressional intelligence committees.

brylin said...

Also check out 18 U.S.C. § 798. Disclosure of classified information

brylin said...

Geoduck2: For the answer to your question look at the Powerline link I posted above.

ATMX said...

Damage was certainly done by revealing that US telecom companies had been encouraged to transport more foreign comm traffic so that the US could monitor it.

brylin said...

I wonder if Pinch will take his stuffed moose with him when he goes to the slammer?

Brian O'Connell said...

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.

Steven said...

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.

Stiles said...

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.

vnjagvet said...

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.

Jacques Cuze said...

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.)

Prometheus said...

Is this more cherry picking? –More slight of hand, pay no attention to the man behind the curtain? I assume that the NYT has a political agenda whose timely release of this story served, perhaps to the detriment of the common good. Also, one would presume that they are trying to sell newspapers. Does that make the actual information any less accurate or alarming?

I still want to know what new information was disclosed and why it took the Justice Dept. over a year to commence with an investigation, unless this is just more frantic damage control on the part of the administration. ‘W’ keeps calling it “a program” as though the unilaterally authorized techs and agents had their own office. No one has yet been able to point to any new information with the exception of the POTUS’s questionable authorization of the wiretaps. How has that “hurt” America? It’s the little lies that tell the big truths.

XWL said...

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.

Prometheus said...
This comment has been removed by a blog administrator.
Prometheus said...

Equally, it could be said, that the narrow-mindedness of neocons clouds their clarity of thought. Why is it that every two second clip we see of him has him repeating “it’s protecting Amer’ca” over and over, like a Gregorian chant, and not addressing the issue of circumvention. It’s the little lies that tell the big truths.

ChrisO said...

"ChrisO: It is fundamentally dishonest to demand a concrete example of how the terrorists have been strengthened by the NSA revelations.

The information is classified and revealing classified information is a crime."

So, if you want to make the point that the details of what occurred need to remain classified, fine. Why then the blanket statements that serious damage was done? You can't have it both ways. And again, the fact that the Bush administration says so isn't enough for me. They have unfortunately destroyed their credibility with the majority of the American public.

Drew said...

Ricardo said...

"I wish people would stop using the phrase "we are at war", or any variant of that"

How can you say we are NOT at war? Al-Qaeda is credited with over 28 major attacks since 1993 with escalating severity, the worst of which killed more U.S. citizens than were killed in Pearl Harbor.

If you need to be reminded of the attacks against our country, please read the following:

For a list of attacks credited to al-Qaeda:

I understand the need for a debate on the conduct of the war on terrorism. I do not understand the contention that we are not at war at all. This position would explain the grim assessments by some of the president's foreign policy. The actions of this administration would seem odd outside the context of the war. They seem perfectly reasonable within that context.

History will tell...