New York Times and the NSA: Time-Delayed Journalism

The New York Times disclosed 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.

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 this Friday 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 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 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 under 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, although one can deduce from the ninth paragraph of the story that probably many thousands of people had their phone conversations, e-mails, 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 to have 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, Friday's Washington Post had 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 sometime 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 spying on US citizens within the US.

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 also 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 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 on 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 it's 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.

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. Readers may also recall that Risen was 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, where he was 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.