May 26, 2008
Eric Lichtblau's Unpersuasive Defense Of The New York Times' Failure To Print His Story On The NSA's Illegal Electronic Spying In October 2004 - - A Time When The Story Could And Probably Would Have Resulted In Bush Losing The Election And Could Have Spared The Country Immense Disasters And Grief

Dean Lawrence R. Velvel

Before I left for Germany not quite three weeks ago, I read Eric Lichtblau's recent book, Bush's Law.  I planned to write a blog about a crucial aspect of it, but got temporarily sidetracked by reading, and then writing a blog about, Lynne Olson's work, Troublesome Young Men.  Perhaps this was in a way fortuitous because one aspect of Olson's book was relevant to, was a precursor of, what I wanted to write about in connection with Lichtblau's work.  The relevant aspect was the fact that in the 1930s the British media was largely in the hip pocket of t he appeasing Chamberlain Government:  the media largely said what the Chamberlain Government wanted it to say, and did not say what the Government did not want it to say.  This contributed extensively to the maintenance of a disastrous British government policy that led to the worst war in human history.

That relevant fact is relevant because of two items regarding the performance of the American media in recent years.  One such item is the horribly incompetent and totally credulous performance of the American media in swallowing, hook, line and sinker, and propagating, the Bush Administration's phony reasons for launching the Iraq war, and thereby facilitating that now-five-year-old-with-no-end-in-sight war.  This awful media performance was led, of course, by the New York Times, which sets the pace in the media world.  The Times has, indeed, more or less apologized defacto, though not, one thinks, de jure, for its culpable role in facilitating war (facilitating war -- indeed causing it -- is also what the Hearst and Pulitzer papers did in 1898).  As well, the constant stream of astonishing page one scandals, involving the Iraq war and the so-called war on terror, which the Times has uncovered and written about in recent years (most recently the Times unearthed the use of former generals and admirals as Pentagon shills) may even be thought a sort of penance for the paper's culpability in enabling Bush to start the Iraq war and for its culpability with regard to the second matter to which the English example of the 1930s is relevant. 

The second matter is the newspaper's failure, in mid to late October, 2004, to run its already prepared story about the Bush/Cheney inspired, illegal NSA electronic spying.  This failure was almost surely responsible for enabling Bush to win a second term instead of being defeated by the huge uproar that would have resulted from the story had it been published -- and which did result when it finally was run over a year too late, in December 2005.  The failure to run the story in October 2004 thus bears extensive responsibility for the disasters which have come pouring upon us because of the reelection of Bush/Cheney.

Despite my view that the Times is a priceless national resource, it strikes me as a legitimate question to wonder whether all of the Times' disclosures of one horrid Bushian scandal after another in the last few years can make up for the paper's culpability in credulously allowing Bush's bullshit to take us into the Iraq war, and to then allow Bush to be reelected -- and to thereby continue the war and all the imperial presidency policies of the Bush/Cheney era -- by not running the story on the NSA spying before the November 2004 election.  The Times plainly failed the duty of the free press, remarked by Justice Black in the Pentagon Papers case, to prevent the people from being sent to die from foreign shot and shell because of governmental misconduct.

Lichtblau was one of the two New York Times reporters who uncovered and wrote the story about the illegal NSA spying that was ready in October 2004 but was not published until December 2005.  (The other reporter was James Risen.)  For a long time it generally was not widely known whether the story had been ready before the 2004 election - - that information was long known only to very few people although others, like myself, developed (and wrote about) suspicions arising from the wording of statements of attempted exculpation issued by the Times editor , Bill Keller, when the story was finally run on December, 2005.  (Keller must have foreseen several storms, including the claim that the Times had been complicit in the reelection of George Bush, and his carefully worded statements - - too carefully worded, it was obvious to some - - had tried to defuse the possible claim.)  I wanted to read Lichtblau's book to see what he disclosed about, and what he himself said about, the whole situation.  Frankly, and no doubt surprisingly to many, I hoped Lichtblau would provide a reasonably extensive, thoroughly believable exoneration of the Times' failure to publish in October 2004, (a hope nourished by comments I heard Lichtblau make on television before I bought the book).  After all, one is not happy to think that the newspaper that the country depends upon not only bears responsibility for facilitating the launching of the war, but also for facilitating the reelection of the disastrous people who launched and continued that disastrous policy and many others besides. 

Well, Lichtblau does bend over backwards to exonerate the Times and its editor, Keller.  He does the best he can in this regard, but in the last analysis his lengthy attempted exoneration is unconvincing.

In the last analysis it is just too obvious from what Lichtblau writes that the Times and Keller gave in to administration pressure, ignored the lessons of history, including the Times' own history in the Pentagon Papers case, and, in effect, sold the American people down the river in October 2004 because of misplaced willingness to once again believe a pack of nearly unmitigated administration liars and because of politically inspired fear of harsh consequences to themselves and their paper if they ran the story.  the Times malperformance, which Lichtb lau generously attempts to portray as sincere and justified concern over accuracy and national security, must join the ranks of media malperformance leading to horrendous consequences which should collectively be taught in a class given as a warning in every journalism school and history department in the country but, as far as I know, is instead taught nowhere.  (If it is taught somewhere, I would be grateful to be informed of this.)

Lichtblau concedes in his book that after 9/11 the media "were no doubt swept up in [the] "national mood of fear and outrage" (p.11), and its normal skepticism "abandoned many of us when it came to matters of terrorism." (P.15.) The media thus paid no attention to, was not interested in, matters that should have invoked outrage, like sweeping innocent people off the street on bogus charges and holding them for weeks or months.  Precisely when Lichtblau thinks this media credulousness finally ended is not exactly clear, though he says that when Times editors and reporters were debating whether to run the NSA story in late October and early November 2004, the administration "had not yet suffered the kind of crippling body b lows to its credibility that it would just a year later." (P.197.)  Thus "When top White House officials insisted that disclosure of a program would risk American lives, any responsible editor was bound to take notice."  (Ibid.) 

Lichtblau's failure to state precisely when administration credibility was lost is symptomatic of a continuous fault in the book that greatly increases the difficulty of assessing the situation.  One has noticed in books by reporters that they - - unlike what lawyers are trained to do - - tell stories without focusing much on the dates when things occurred.  One often has to look back ten or fifteen pages to know the time frame involved, and sometimes one is hard pressed to figure it out even then.  Reporters' books seem to go back and forth in time without explaining the chronological switches.  This problem affects to some extent Lichtblau's telling of the tale of the administration's efforts to persuade the Times not to publish the NSA story and the Times' responses to those efforts.

Nonetheless it can be said that, for pages on end, Lichtblau describes the full court press (pun?) the administration constantly put on the Times not to publish the story, a full court press that, from October 2004 until December 2005, would ultimately involve "Bush and ten senior advisers in the White House and the intelligence community (who made) personal pleas not to run the story."  (P.194.)  "[T]he Times," says Lichtblau, "had rarely faced the kind of full-throated pleas to kill a story that it would confront over the NSA program" (Ibid.)  "I've never had a case where the government raised such strident claims, at such a high level," Keller later told Lichtblau.  (Ibid.)  The government naturally told the paper that, if it published the story, it "would bear responsibility for the [awful] consequences."  (Pp. 194-195.)  But the arguments for nonpublication put forth by the government were all partially or wholly false.  On each of them, "we had reason to suspect," beginning at some unidentified point in time, "that the White House was actively misleading us and that its impassioned pleas might have less to do with concern over national security harm than with the legal and political fallout that the story might trigger."  (P.196.) 

And, "[o]n nearly every central point, Bush's advisors bolstered their case with assertions that, ultimately, proved misleading or simply untrue."  (P.195.)  Such misleading and untrue claims involved the supposed absence of debate on legality within the administration, the Department of Justice always signing off on the program's legality, the supposed lack of any concerns on the part of the very small number of legislators who had [to some extent] been briefed, the supposed existence of controls against abuse, that publishing the story would cause the program to have to be discontinued immedi ately, and the claims that phone calls were not being listened to or emails read, but rather only data mining techniques were being used.  (Pp. 195-196.)  These were all lies or misleading.

Within the Times there was debate, in late October and early November 2004 on whether the story should be published.  "Jim [Risen]and I thought the story should run," which was expectable since they wrote it. (P.196). Two of the editors, "Bill Keller and Phil Taubman [,] weren't so certain," though Keller said that if the story were ready before the election, it would run then. (P.197.)  But Keller "had questions, including the central one:  whether, as the administration so urgently insisted, the story would harm national security if it if it were published."&n bsp; (P.197.)  And though Keller insisted that the upcoming election was of no moment in regard to timing, the debate on running it included the question of timing because "The Times had just run an explosive story on the Bush administration's failure to guard munitions in Baghdad, a story that critics on the right had lambasted as a last-minute ploy to hurt Bush" in the upcoming election.  (P.196.)  Indeed, when the Times finally did run the NSA story over a year later, Keller gave it only a one column-wide headline in order to avoid looking "like we were poking the White House in the eye." (P.211.)
So the story was not published in October or November, 2004, probably the worst president in history was reelected, and the story was dead for awhile.  

After the election Lichtblau now and again asked questions of legislators about the matter -- Jane Harman was very discomfited by his questions -- but what brought the story back to life was not any sudden resolution by Keller or Taubman to do the right thing even though the horse was out of the barn (i.e., the disaster, Bush, was now reelected).  Rather, it was resurrected for different reasons.  Risen was seriously thinking of putting it in a book he was writing and told this to the editors (who were thus going to be scooped by one of the paper's own reporters).  (Pp. 202-203.)  To Risen, t he question of publishing or not publishing the story was a question of moral choice.  (P. 210.)

Also, it began to become clear from sources that the administration had lied to the newspaper when persuading it not to run the story in 2004.  (P. 203.)  (One of the persons who lied flatly and horridly to Lichtblau (who does not mention it) was Jack Goldsmith, who in his own book wrote, amazingly, of baldly lying to Lichtblau in October 2004 (three months after he left government), a time when we know that Lichtblau was trying to pin down certain details that would affect possible publication, such as whether anyone in government had thought the program illegal.  Goldsmith had thought it violently illegal, and had worked extensively to try to cure the illegality, but told Lichtblau "untruthfully, that I didn't know what he was talking about," i.e., knew nothing of any NSA program.  The details regarding this self confessed liar who now teaches at Harvard Law School are set forth in a posting here dated October 5, 2007, and reproduced in my forthcoming book entitled An Enemy Of The People:  The Unending Battle Against Conventional Wisdom (Doukathsan, 2008).)  As well as discovering it had been lied to and misled, at a meeting at the White House attended by a host of the administration's henchmen, almost all of them had to admit to Keller, Taubman and Lichtblau that they had had concerns.  (Pp. 206-207.)  Harriet Mier though -- who apparently is an ultra-Bush-protecting scumbag whom it seems to have been very wrong of me to defend somewhat with regard to her aborted Supreme Court nomination -- acted very badly at one point in the meeting, at a point that Lichtblau says was "an illuminating moment."  (P. 207.) After this meeting Bush requested a personal meeting with Arthur Sulzberger, Keller and Taubman, at which he told them that if there were another attack "‘there'll be blood on your hands.'")  (P. 205.)

Then the White House strung along the newspaper for almost another two weeks -- during which it apparently persuaded the Times to order Lichtblau and Risen to "‘stand down'" from their inquiries one weekend (p. 209) -- but Lichtblau fortuitously found out a bit later that the administration was considering "seeking a Pentagon Papers-type injunction . . . to stop publication of the NSA story."  (P. 210.)  This "was a bombshell" that "all but made the decision on the timing for us."  (P. 210.)  The editors determined to publish and, to forestall an injunction that would stop the presses in mid run after the administration was notified the story would be run, the Times put the story on its website, where it was instantly available to the whole world the night before the printed paper hit the streets.  (P. 211.) 

* * * * *

As I hope you could tell, Lichtblau, as said, tries to support the editors' decision not to publish for over a year.  He defends the editors as acting in good faith and desiring to be careful journalists.  He even says, in defending the initial decision not to publish, that reporters "have a built-in backstop, a check and balance, and it's called the editor."  (P. 196.)

But Lichtblau's effort fails for two reasons.  The less important one concerns the criticism the paper received for allegedly engaging in a last minute ploy to affect the election by publishing a story about the failure to protect munitions in Baghdad.  This was obviously on the editors' minds.  While Lichtblau claims it shows that a story that was solidly based wouldn't be delayed by the editor to avoid hurting Bush in the election, the context of Lichtblau's tale causes one to think the opposite is true.  For the context necessarily causes one to suspect that the question of whether the story would be considered to be sufficiently solidly based was deeply affected by the fact that it could have an impact on the election and for that reason would give rise to infuriated criticism from conservatives.

The other, far more important reason relates to the fact that Keller's "central question" was "whether, as the administration so urgently insisted, the story would harm national security."  (P. 197.)

Today, over 3½ years later, we know that they almost surely were right who argued early on that (as Lichtblau himself seems to have thought) the NSA story would cause no harm to the U.S. because Al Qaeda had to already have been concerned for other reasons entirely that its electronic communications were likely being intercepted and that it had to take steps to ensure that the interception would not injure or destroy it.  But let me nonetheless put this to one side, and discuss instead only what Keller and the other editors should have recognized on the basis of knowledge of the Bush administration that the Times must have had by October 2004, and what the applicable lessons of journalism history were.

What the Times had to have known by October 2004 was that the Bush administration could not be trusted because fact after fact showed it would say and do anything to accomplish its ends, regardless of how dishonest or immoral its statements or conduct were.  Here are just a few of the matters showing this that were in the public domain by October 2004, most or all of them having been written about, and some even having been initially disclosed, by the Times itself.  (I am confident of the timing here because I took the relevant matters from blogs I wrote in the spring and summer of 2004.  Many of the blogs, most of them really, got the information from the Times itself.)  By October 2004 it was known -- and often had been known for a pretty long time - - that:

  • The administration had lied about WMDs.

  • It had made a horrible misassessment of the manpower required for Iraq, had wrongly claimed it could succeed on the cheap, and had not recognized that Saddam could, as he did, prepare a guerrilla war.

  • It had fired General Shinseki for telling the truth about the manpower that would be needed.

  • It had fired Larry Lindsay for saying the war would cost far more than the administration claimed.

  • Torture memos had been produced.

  • Torture had been used.

  • Prisoners had been killed.

  • Innocent people had been swept off the streets and kept in jail for long periods.

  • Secret prisons abroad were being used.

  • Renditions were being engaged in for purposes of torture.

  • Military tribunals had been created because the administration knew that evidence had been gotten by torture and coercion that precluded successful prosecutions in civilian criminal courts.

  • The administration claimed the Geneva Conventions did not apply.

  • Chalabi was a bust.

  • George Tenet was an incompetent and a liar. 

  • Valerie Plame had been unlawfully outed.

  • Bush was a nonreading, incurious fundamentalist zealot.

  • Prisoners had recanted because statements were elicited by torture.

  • Prisoners were held incommunicado for years.

  • The administration was deeply secretive.

There is an old saying in this country that is a comment on a person's lack of truthfulness:  "Would you buy a used car from this man?"  Well, with all the above having become known by mid to fall 2004, would you have bought a used car from George W. Bush or his administration?  They were all known to be untrustworthy, deeply secretive, often deceitful people.  Yet despite what already was known about them, Keller was worried that their statements about the NSA program were true? -- that the program was absolutely essential for national security? that everyone in government thought it legal (by the way, there is no statement in Lichtblau's book that the Times sought the confidential advice of its own high powered lawyers about this)? that the program would have to be shut down immediately if the story were published? that the Times would have blood on its hands?  Keller bought all this swill and for that reason he and Taubman nixed publication of a hugely important story about conduct so outrageous that the story would have changed the election results and enabled the country to rid itself of a walking disaster? 

It is obvious, as it has been for a long time for reasons discussed here previously, that Keller has awful judgment.  The defense provided for him by Lichtblau -- that he was worried about claims the Times would jeopardize national security -- won't wash because, if it is true, it is simply another sign of Keller's horrible judgment.  One can almost guarantee that, if it were the unpopular Howell Raines asserting the defense, instead of the popular Bill Keller, he would be out on his ass in the proverbial New York minute.

In addition to showing credulous bad judgment in October and November of 2004, the pertinent editors ignored lessons of history, including the Times' own history. Lichtblau says that "Few episodes in the history of the Times, or for that matter in all of journalism, had left as indelible a mark" as the Pentagon Papers case (p. 210), so that learning in late 2005 that the administration was considering seeking a Pentagon Papers type of injunction "was a bombshell" that "helped seal the decision" to publish.  (Ibid.)  Well, it is sarcastic to say so, but one is of course delighted that over a year after the most important horse was out of the barn -- Bush was reelected - - the Times remembered the Pentagon Papers case, or at least the attempted injunction aspect of it.  But how come it did not remember a different but crucial aspect of the case, in October and November 2004?  How come it did not remember that the reasons the Government claimed publication of the Papers would harm national security were all false, were all plain bullshit, and were subsequently admitted to be false (i.e., were admitted to be bullshit) by Erwin Griswold, the esteemed Solicitor General (and former long-time Dean of the Harvard Law School) who argued for the requested injunction in the Supreme Court?  Remembering that the Government had lied in its Pentagon Papers efforts --remembering history -- might have given one pause before believing that an administration already known to lie was telling the truth now.

As well, how come Keller and company did not remember that the Times helped foster disaster when, in 1961, it went along with Kennedy's request not to print a story that would have disclosed, and nullified the possibility of, the forthcoming Bay of Pigs invasion, which turned out to be such a disaster that Kennedy later remarked that he wished the Times had ignored his request to suppress the story?

How come the editors did not remember that during World War II the Times vastly downplayed, gave only some small back of the book treatment to, the holocaust, which it, like the British and American governments, knew was occurring.  It barely ran this news because the Jewish owners of the paper thought it might increase American anti-Semitism, but one result for sure of not running the story was that this contributed to the Nazis continuing to unmolestedly operate their six-million-dead death camps.  That suppression of a story was a real winner, huh?

How come the editors did not remember that their predecessors' credulousness with regard to the writing of one of the Times' own reporters, Herbert Mathews, led to falsely glowing reports to the American people about the Castro of the Sierra Maestra, and for that matter, a Times reporter named Walter Duranty had issued similarly glowing, credulous reports about Stalin and Russia in the 1930s.  And none of this is even to mention the previously discussed credulousness of Judith Miller, Michael Gordon and the editors in signing up for and taking the lead in propagating Bush's bullshit about WMDs, which got us into the Iraq war. 

And how come the Times' editors forgot to remember, in October and November 2004, that the government had lied for years on end about Viet Nam, that the Nixon administration had lied like a rug about Watergate for as long as it could, that Clinton had lied and dissembled as had his ("I'm no Tammy Baker standing up for her man") wife? 

How come all these lessons of journalistic history -- lessons teaching journalists to be very skeptical of, indeed to often and largely disbelieve, governmental statements -- were ones that Bill Keller and Phil Taubman forgot to remember?  The country and the journalism profession being ahistorical, it is possible that one or two of the lessons may not have been known to the editors.  But most must have been known to them, so lack of knowledge is not why they forgot to remember.  The true reason, one would think, is simple:  unreasoning -- and misplaced -- fear of politically inspired adverse cons equences if they printed a story which the reporters thought true and that indeed was true.  Keller would no doubt say the failure to publish was prudent caution.  I call it misplaced cowardice that caused disaster.

The lesson-teaching episodes of journalistic history mentioned above are ones which, as opined earlier, should be taught in every journalism school and history department.  More immediately, they, and the disastrous episodes of the Times credulousness about WMDs and the failure to publish in October/November 2004, show that the relevant lessons have not necessarily been absorbed, at least not sufficiently, and that the judgment of Bill Keller can be terrible in the crunch.  And so might be Taubman's and Arthur Sulzberger's, to the extent they were involved with and supported these derelict actions.  Personally, as said here before, I think that Keller and Sulzberg have shown themsel ves inept in the crunch and should be replaced.  Maybe Taubman too.

You know, people sometimes ask me why, or comment on the fact that, I am so hard on the Times and Harvard.  The answer to the question or comment is simple.  These two institutions stand at the pinnacle of two vital American institutions, the media and the universities.  All over the country people follow their lead.  When either of these two institutions act incompetently, dishonestly or unethically, the lead they give, the trend they set, which others follow, is one of incompetence or unethicalness.  It is no different than if, for example, the Mayo Clinic were to begin setting an example of un ethical conduct in medicine (an example which has been set, I note, by some other leading medical institutions).  For Mayo to set such an example, instead of setting the example that I read it does set, would be disastrous.  It is the same for Harvard (which in recent years set horrible examples with regard to ghostwriting and endowment hoarding) and the Times.  One should be hard on these institutions -- it is actually a tribute to them -- because we depend on them to set the nation an example of honesty, competence, ethics, etc.  By the numerous governmental scandals it has regularly been unearthing in recent years, and by editorials it has been writing (though not by its misbegotten action of giving William Kristol yet another microphone for his right wing wackoism on its op ed page).  The Times has been acting admirably of late and has seemed to be doing a sort of penance for the two horrible war-causing and war-prolonging misjudgments written of here.  Yet it's like anything else:  when somebody has been responsible for horrendous misjudgments in the crunch -- misjudgments that facilitated war and then more war -- as Keller has and as I think Sulzberger and Taubman have, they should go.  Raines was sacked for much less.

It is true that this is a country where losing football and basketball coaches, incompetent university presidents, corporate titans who bring disaster on their companies, and wacked out editorialists who are often or usually wrong if not absurd, go from strength to strength -- they keep their jobs, get lucrative new ones, and/or get fantastically lucrative golden parachutes.  But all of this is bad and wrong.  When people fail, or fail in the crunch, they should go.  Period.  Nor can all the penance in the world substitute for the vast mistakes discussed here, mistakes without which there would have been fewer, or few, policies requiring penance after mistakes were found to have been made.

This posting represents the personal views of Lawrence R. Velvel.  If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu.  Your response may be posted on the blog if you have no objection; please tell me if you do object.


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