The New York Times and the NSA’s Illegal Spying
This article is excerpted from End Times: The Death of the Fourth Estate by Alexander Cockburn and Jeffrey St. Clair. (CounterPunch/AK Press: 2007).
The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation. The statesman collects his information secretly and by secret means; he keeps back even the current intelligence of the day with ludicrous precautions The Press lives by disclosures For us, with whom publicity and truth are the air and light of existence, there can be no greater disgrace than to recoil from the frank and accurate disclosure of facts as they are. We are bound to tell the truth as we find it, without fear of consequences–to lend no convenient shelter to acts of injustice or oppression, but to consign them at once to the judgment of the world.
Robert Lowe, editorial, London Times, 1851.
Robert Lowe’s magnificent editorial was written in response to the claim of a government minister that if the press hoped to share the influence of statesmen it “must also share in the responsibilities of statesmen”. It’s a long, sad decline from what Lowe wrote in 1851 to the disclosure by the New York Times on Friday that it sat for over a year on a story revealing that the Bush administration had sanctioned a program of secret, illegal spying on US citizens here in the Homeland, by the National Security Agency.
And when it comes to zeal in protecting the Bill of Rights, between December 22, 1974 and December 16, 2005 it’s been a steady run down hill for the New York Times. Thirty-one years ago, almost to the day, here’s how Seymour Hersh’s lead, on the front page of the NYT, began:
The Central Intelligence Agency, directly violating its charter, conducted a massive, illegal domestic intelligence operation during the Nixon Administration against the antiwar movement and other dissident groups in the United States, according to well-placed Government sources.
And here’s the lead paragraph of the NYT’s page one story on December 16, 2006 by James Risen and Eric Lichtblau:
Months after the September 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Government illegality is the sinew of Hersh’s first sentence. He says that that what the CIA did was illegal and that it violated the CIA’s charter. What the NSA has been doing is also illegal. Its warrantless domestic eavesdropping is in direct violation of the 1978 law which came about as a direct result of Hersh’s expose and the congressional hearings that followed. The eavesdropping it also violates the NSA’s charter, which gives the Agency no mandate to conduct domestic surveillance.
Yet in Friday’s story it wasn’t until the end of the third paragraph that Risen and Lichtblau wrote timidly that “Some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.”
In the eighth paragraph of Risen and Lichtblau’s story comes the shameful disclosure alluded to above:
The White House asked the New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be understand scrutiny. After meeting with senior administration officials, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
Hersh put the word “massive” in his first sentence, and drew undeserved fire for exaggerating the extent of surveillance, which a presidential panel finally admitted was “considerable large-scale substantial”. Risen and Lichtblau shirk any direct estimate of how big the NSA’s domestic spying has been, though one can deduce from the ninth paragraph of the story that probably many thousands of people had their phone conversations, and emails and faxes illegally spied upon by the NSA.
The Times suggests that it held up the story for a year partly to do “additional reporting”. This “additional reporting” seems to have yielded sparse results. Friday’s story was extremely long, but pretty thin, once the basic fact of NSA eavesdropping had been presented. The year’s work doesn’t seem taken the reporters beyond what was urgently leaked to them in 2004 by twelve different government officials concerned about the illegality of what the NSA was doing and the lack of congressional oversight.
Indeed, the Washington Post featured a much more compact story by Dan Eggan that not only stressed the illegality in its first paragraph but had material that Risen and Lichtblau missed, namely that the NSA had begun its illegal program right after 9/11, even before Bush signed the executive order okaying the surveillance, some time in 2002. It was Eggan who reported that faxes had also been spied upon by the NSA.
And again, it was Eggan in the Post who put the NSA story in a larger context, namely the fact that in the past week the Pentagon has been forced to admit that military intelligence agencies such as the Defense Intelligence Agency have also been illegally surveilling US citizens within the US.
In the TALON Program (Threat and Local Observation Notice) a Pentagon unit called Counter Intelligence Field Activity (CEFA) has been amassing thousands of files on potential threats to US military installations. Many of the subjects of these files have turned out to be antiwar groups and anti-recruiting activists. For example, when CIA director George Tenet visited as campus and encountered protests, the CEFA unit would immediately open files on the protesters. The unit was supposed to purge its files of all names and organizations caught in its drift nets that failed to meet the test of being any form of threat. But of course no such purge took place.
Eggan also reported that “Teams of Defense Intelligence Agency personnel stationed in major US cities [have been] conducting the type of surveillance typically performed by the FBI: monitoring the movements and activities — through high tech equipment of individuals and vehicles.”
The impression one gets from the Washington Post story is that the Bush administration had given the green light to a truly massive program of warrantless domestic surveillance by the NSA and military agencies. The New York Times reporters suggested no such context, setting the spying activities in a more forgiving light, as part of the war on terror.
Who designed this policy? Deep in the Times’ story hardy readers trudging through Risen and Lichtblau’s leaden prose would have tripped over vice president Cheney’s name in the twenty-fifth paragraph where he is described as bringing congressional leaders to his office to brief them on the program. Only at the very end of the story, in the forty-eighth paragraph do such readers as have survived the trek learn that the legal brief justifying this onslaught on the US Constitution was written by Professor John Yoo, at that time at the Department of Justice. Such readers would not have learned — as they did from the Washington Post — that Yoo had written the notorious memos justifying torture. The Times didn’t make it clear that Cheney and Yoo were key players in the Administration’s insistence that the Executive Branch has the inherent powers to sanction domestic spying without oversight from either of the other two branches of the government.
In fact members of Congress, aside from Senator Jay Rockefeller, raised no demur. It was the judiciary, in the form of the judge, Colleen Kollar-Kotelly, presiding over the secret intelligence court established by FISA, who reprimanded Justice Department lawyers for trying to get legal warrants from her, using as “probable cause” data from the illegal surveillance, although not admitting this.
In fact it’s something of a puzzle why the Times finally did publish the story, after sitting the information leaked to it by the NSA officials worried that they might get prosecuted for illegal surveillance. It is true that Friday’s publication came in the closing hours of the battle in the US Senate over reauthorization of the Patriot Act. And its probably true that the publication of the story pushed enough wavering senators into the ranks of those who on Friday successfully fought to get the bill shelved, in a major defeat for the White House.
It’s also true that all year Risen has been hard at work on a book about the conduct of US intelligence agencies in the “war on terror” after 9/11, slated for release next spring. The book’s launch will no doubt be accompanied by some new disclosure by Risen, designed to give the book lift up the charts. Perhaps that too will be a story he’s been keeping in the larder for months.
This lamentable synergy featured in Bob Woodward’s journalistic calculations and also in the promotional circumstances of the book written by Judith Miller, Stephen Engelberg and William Broad, Germs: Biological Weapons and America’s Secret War. The Times front-paged her stories in the paper in a manner designed to push the book up into Bestseller status. It was a clear conflict of interest that earned the paper plenty of money. This was when Miller was sent that envelope of white powder that turned out not to be anthrax spores, which gave the book yet another boost.
Risen, we should remind our readers, is one of the reporters who smeared the late Gary Webb with the charge that Webb had overhyped his 1996 San Jose Mercury News series on the CIA/contra/cocaine connections. Webb didn’t pace his disclosures to suit a book-writing schedule. He only wrote his book after he’d been forced out of his job.
Risen was also one of the New York Times reporters, along with Jeff Gerth, who raced into print with baseless smears that cost Wen Ho Lee almost a year of his life in solitary confinement, being threatened with the death penalty by FBI interrogators. On that occasion Risen and Gerth didn’t wait a year to do additional reporting and fact checking. They rushed to do the government’s bidding (relaying the smears of an Energy Department official who had it in for Wen Ho Lee) just as Risen and the New York Times clicked their heels in the NSA case, sitting on an explosive story through the 2004 election and for months thereafter, and even then agreeing to withhold certain facts.
Such submissiveness on the part of the Times harks back to self censorship by the paper in the early 1950s, covering up CIA plans for coups in Guatemala and Iran; also to the paper’s behavior in 1966 when it had information about IA shenanigans in Singapore and through south-east Asia. The editors submitted the story for review by CIA director John McCone, who made editorial deletions.
In its NSA story, the New York Times meekly agreed not to identify the “senior White House official” who successfully petitioned them to spike the story for a year. The fact that no one was specifically named allowed Bush to discount the entire story when he went the Lehrer News Hour on the next Friday evening.
JEFFREY ST. CLAIR is the author of Been Brown So Long It Looked Like Green to Me: the Politics of Nature, Grand Theft Pentagon and Born Under a Bad Sky. His latest book is Hopeless: Barack Obama and the Politics of Illusion. He can be reached at: firstname.lastname@example.org.