January 1, 2006
Times Public Editor: Bill Keller Stonewalled Me
Let's remember, as we contemplate public editor Barney Calame's stinging Jan. 1 column, "Behind the Eavesdropping Story, a Loud Silence," that Bill Keller hired Calame and he's the only one who can fire him...
Let’s remember, as we contemplate public editor Barney Calame’s stinging Jan. 1 column, Behind the Eavesdropping Story, a Loud Silence, that Bill Keller hired Calame and he’s the only one who can fire him. (His term runs to May, 2007.)
This is relevant because Calame has called Keller’s decision-making “woefully inadequate,” while charging that both Keller and Arthur Sulzberger, Jr. have “stonewalled” him. Also because Steve Lovelady, editor of CJR Daily, has already suggested that Calame’s position may be tenuous. “Keller and Sulzberger have finally run head on into an honest man who will not bend; and he has the balls to tell both of them that they have come up wanting,” said Lovelady in the comments to my previous post, “I’m Not Going to Talk About the Back Story.” He added: “I think it’s time to start speculating who will be the Times’s next public editor.”
Keller anticipated this situation in an exchange in 2003 with Geneva Overholser, former ombudsman of the Washington Post. (I wrote about it here.) Overholser had criticized the Times’ decision to allow Keller to hire and fire the public editor. It would not guarantee the same kind of independence the Post ombudsman had by virtue of having a contract with the publisher, she said. I am going to quote his reply at some length because it has renewed meaning now that Calame has challenged Keller on the refusal to answer 28 questions about the Dec. 15 article revealing warrantless eavesdropping by the National Security Agency. Here’s what Keller wrote in 2003:
First, I’m not so sure that the critical guarantee of independence lies in the nature of the contract. I can readily imagine an ombudsman supplied with all the contractual assurances of independence — long tenure, a dimissal-proof contract, a weekly column — who would still be timid in criticizing the paper, because of lack of self-confidence or a desire to preserve relationships with colleagues or an ingratiating personality. I can also imagine a person of integrity and uncompromising judgment who would be independent even knowing that I had the power to fire him or her. Indeed, I could argue that the latter situation confers GREATER, not lesser, leverage. I can render a tenured, “independent” ombudsmen ineffective simply by ignoring the advice, and who will really notice? But If I fire my supposedly less independent ombudsman, I’m inviting a whale of a scandal. My point is, the independence rests mainly in the character of the person who holds the job. And it will be most evident in how he or she performs the job.
Second, the only power I will assert over the ombudsman is the power to hire and fire. I won’t be prescribing procedures or deciding when to publish and when not. As I’ve just said, I fire such a person at my peril. But by hiring such a person, I bestow a declaration of trust and authority that should enable the ombudsman to influence the internal workings of the paper on behalf of readers. A person who has the executive editor’s blessing carries some weight in a newsroom. Michael Getler’s internal memos are incisive. Do they carry any weight? Or do editors and reporters treat them as an annoyance? I don’t know. As you say, the internal role is, if anything, more important than the external role. Isn’t it possible that having a public editor who is appointed by me and has ready access to me may confer a greater ability to change our culture, to get us to live up to our own responsibilities to readers?
One thing jumps out at me from this statement: Keller’s observation that “the internal role is, if anything, more important than the external role.” Meaning the public editor, acting on behalf of readers, ought to be able to influence the workings of the paper, and not just criticize it. His views should carry some weight. Reflecting on the newsroom committee report that recommended the new positon after the Jayson Blair mess, he told Overholser: “They preferred that the ombudsman be first and foremost the readers’ advocate for changes in and by the paper rather than a columnist whose subject happens to be The Times.”
I guess we’ll see if Calame’s advocacy is effective and carries any weight, but it’s clear that Keller thought it should in 2003. Of course now that there’s a Justice Department investigation of the leaks that led to the wiretapping story, the Times may be even less inclined to go into what Keller called “the back story.”
Tim Rutten of the Los Angeles Times wrote a dismissive, snooty column about those who wondered why the Times held the story for more than a year, and—in the absence of explanations from the Times—took to forming their own theories. Only people who are clueless and paranoid about newspaper journalism would wail about that, he said:
Bill Keller, the Times’ executive editor, responded to all this with a statement saying that “publication was not timed to the Iraqi election, the Patriot Act debate, Jim’s forthcoming book or any other event. We published the story when we did because after much hard work it was fully reported, checked and ready, and because after listening respectfully to the administration’s objections, we were convinced there was no good reason not to publish it.”
Now that isn’t going to satisfy anybody, unless of course they’ve ever been around investigative reporting or newspapers. It is in the nature of investigative reporters to believe in their work and push to get it in the paper yesterday. It’s the job of editors to caution, restrain, rethink, second guess and demand more… Nothing about this should surprise anyone — unless he or she is already convinced that the country’s major newspapers are biased participants in some vast and amorphous conspiracy or his or her brain has gone soft from watching too many reruns of “All the President’s Men.”
“The New York Times deserves thanks and admiration for the service it has done the nation,” Rutten wrote, and I strongly agree with that. (The service continues too.) “Instead, it’s getting bipartisan abuse and another round of endless demands for explanations and ‘transparency.’” That was absurd and misleading. Absurd because “transparency” is a demand that Times has been making on itself for several years. (Again, see my prior post for the details.) As Calame wrote, “I have had unusual difficulty getting a better explanation for readers, despite the paper’s repeated pledges of greater transparency.”
Rutten’s column was misleading because it suggested that no one with experience, no one in the Big Journalism club, no one who’s “been around investigative reporting or newspapers” would find Keller’s communication with readers lacking. This is simply untrue. Rutten knows it’s untrue because he reads Romenesko.
Among those who were discomforted by the Times unwillingness to adequately explain itself were former Times-men Alex Jones and Bill Kovach, and Tom Kunkel, dean of the J-school at University of Maryland and a former newspaper editor. (For more see Editor and Publisher and CJR Daily.) Now we can add Calame and his 40 years of newspaper experience to that list. Rutten has expressed his skepticism in the past about various transparency demands— a defensible position. But he refuses to acknowledge that this is a live debate among his peers. It’s just easier to pretend that clueless outsiders and know-nothing bloggers are the ones who want more transparency from the Times.
Influenced by Rutten, Jason Zengerle wrote in the New Republic’s blog, The Plank, that “if the Times and most other media outlets actually abided by Rosen’s transparency prescription, they wouldn’t be able to produce first-rate stories like the one about the NSA’s warrantless surveillance. Rather, they’d be spending all their time working on meta stories.”
He said that it was my lack of newsroom experience that permitted me to make such absurd and impractical suggestions. But here’s Calame (20 years as an editor for the Wall Street Journal) criticizing the Times for failing to live up to its own transparency prescription, which was the whole point of offering mine.
It’s a cliche to end columns with the phrase “stay tuned.” But in this case it’s apt. Reporter James Risen’s book was scheduled for publication mid-month. But it’s been moved up to Tuesday, Jan. 3, according to Calame. He ends his piece with this:
“If Mr. Risen’s book or anything else of substance should open any cracks in the stone wall surrounding the handling of the eavesdropping article, I will have my list of 28 questions (35 now, actually) ready to e-mail again to Mr. Keller.”
After Matter: Notes, reactions and links…
“Hey, Atrios: When was the last time that you exposed such a big story?” That’s Franklin Foer at the New Republic’s blog, The Plank. (MSB=The Mainstream Blogosphere)
Thanks to the MSB’s sweeping, reckless criticisms, the Times has lost much of the credibility and authority that it needs to mount a robust defense. For this, the bloggers deserve some credit. Well done, guys.
Atrios replies: “The Left wants to the press to do a better job, the Right wants to undercut their credibility.” And Foer has a response to that. Also see Armando at Daily Kos who says it’s possible to give praise and support and to criticize.
Michelle Malkin: “Hey, speaking of transparency, why doesn’t Mr. Calame publish his 35 questions so the rest of us can see what his bosses refuse to answer?”
Times public editor Byran Calame writes his first almost-tough column taking The Times to task, properly, for not revealing why they did not reveal what they know about warrantless NSA spying — and why they did reveal it when they did.
At TPM Cafe, see Larry Johnson (ex-CIA) on the difference between “officially-sanctioned” leaks and leaks of the whistle blower variety.
While the Bush White House is certain that those responsible for these leaks are political partisans hell bent on damaging the President, it is really a sign that folks on the inside with a conscience finally decided to speak out.
Glenn Reynolds at Instapundit:
The Times’ behavior on this story, and the Plame story, has undermined the unwritten “National Security Constitution” regarding leaks and classified information. Since the Pentagon Papers, at least, the rule has been that papers could publish classified information in a whistleblowing mode, but that they would be sensitive to national security concerns. In return, the federal government would tread lightly in investigating where the leaks came from. But the politicization of the coverage, and the outright partisanship of the Times, has put paid to that arrangement. It’s not clear to me that the country is better served by the new arrangement, but unwritten constitutions require a lot of self-discipline on the part of the various players, and that sort of discipline is no longer to be found in America’s leadership circles.
For bloggers reactions to the leak investigation the Justice Department will undertake, see Joe Gandelman’s round-up.
Bill Quick: “I hope they drag every time reporter, editor, and administrator who had anything to do with this story before a grand jury and if they refuse to reveal their sources or other knowledge about the leaks, they clap them in jail until they do.”
Alexander Cockburn and Jeffrey St. Clair compare the opening paragraph of the Times Dec. 15 story with this graph from a Seymour Hersh story in the Times 31 years ago: “it’s been a steady run down hill for the New York Times.”
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.
Their point: Then the Times directly stated that the operation was illegal. Today, they say, it would never do that.
Calame’s Public Editor column today seemed weak to me. The only place the NYT obviously scrwed up was in not disclosing Risen’s forthcoming book. But taking a year to verify an important story, and getting the right sources to firm it up, is good journalism. I find the notion that this somehow undermines national security a little odd. Do we really think al Qaeda members previousloy believed all their calls to the U.S. were free from any surveillance?
Calame added an entry at his web journal re-printing Keller’s two statements to the news media (made in lieu of answering questions.) “Given the paucity of comment from The Times about the article, I think readers might find these statements interesting,” he writes. He also directed readers to other commentary, including PressThink and Rutten.
Katharine Seelye, New York Times: Answering Back to the News Media, Using the Internet.
Subjects of newspaper articles and news broadcasts now fight back with the same methods reporters use to generate articles and broadcasts - taping interviews, gathering e-mail exchanges, taking notes on phone conversations - and publish them on their own Web sites. This new weapon in the media wars is shifting the center of gravity in the way that news is gathered and presented…
I am quoted by Seelye thusly: “The printing of transcripts, e-mail messages and conversations, and the ability to pull up information from search engines like Google, have empowered those whom Jay Rosen, a blogger and journalism professor at New York University, calls ‘the people formerly known as the audience.’”
Bill Kovach, a senior statesman of newspaper journalism, former editor of the Atlanta Constitution, former Washington bureau chief of the New York Times, was asked how he would characterize 2005 in journalism:
The year was yet another in a string of bad years for a journalism of real value to a self-governing democracy. The New York Times and The Washington Post, two of the world’s great newspapers, lost a great deal of respect from their readers when senior reporters were seen to be more concerned with their access to people and institutions of power than to their readers, and senior editors at both papers seemed unable to manage their reporters.
Kovach says he reads “Instapundit, LA Observed, Buzz Machine, Power Line, Press Think, RealClear Politics, Daily Kos, The Volokh Conspiracy, etc., etc.”
L.A. blogger Patterico published his third annual review of the Los Angeles Times news coverage. The theme is liberal bias. “This year’s installment will cover familiar topics, such as general anti-Republican and pro-Democrat bias, culture wars issues, and media coverage.”
It’s a new blogging year! My five favorite PressThink posts of 2005:
Your nominations (posts or comment threads)?
Many, many thanks to everyone who participated in PressThink comment threads—especially the regulars—and everyone who lurked. People continue to tell me that the comments are what make this weblog totally distinctive on the Net, and I believe that. So cheers and here’s hoping for a year with more truth.
Posted by Jay Rosen at January 1, 2006 1:03 AM
I think we saw it pretty clearly with the Judith Miller affair, and we see it clearly here - the New York Times has become so institutionally hamstrung that it cannot be transparent. It's institutionally incapable of doing so. It's become too big, too unwieldy, and its institutional interests preclude actual reporting.
Like a huge 100-billion + mutual fund which tries to invest in microcaps, only to find the very fact that it's investing in microcaps or selling microcaps to be moving the markets against its own interests, the Times is finding it difficult to report on some matters without finding that it has, itself, become part of the story.
And once it has become part of the story, it becomes almost impossible for the NY Times as an institution, to cover the story accurately. Times staffers will not out Times staffers.
Compounding this difficulty is the fact that the New York Times, like many coastal media sources, and like Manhattan itself, become an echo-chamber of Northeeaster liberal orthodoxy.
Because there is almost no intellectual diversity in its ranks - studies showing that liberals outnumber conservatives in the newspaper world by 4 or 5 to 1 are legion - it becomes even more difficult to honestly and accurately report on anything, because there is no internal system of checks and balances on underlying assumptions.
Times staffers live and work in a liberal fever swamp, and then go out and drink in cafes and bars and hang out in parks that themselves have become liberal fever swamps, and are never seriously exposed to other modalities of thinking.
Maybe they have one or two moderates in the newsroom whom everyone else THINKS is a conservative.
I've contacted the Times, and their editors on several occasions when they've absolutely blown coverage on Iraq or military affairs, asking how many of their newsroom staffers are veterans.
I've never received an answer. Undoubtedly, it's very few, or they wouldn't make the kinds of mistakes they routinely make. But it does speak to newsroom diversity - an ideal for which they'll go to the mat, as long as its LIBERAL diversity.
Thanks, ami. I think one of the hardest things for professional journalists to accept about the new reality of the Net is what Jane's talking about there: the idea that "the hours and days sifting through raw data now available to average people on the internet" produces real value. They find it impossible to believe that it can be as valuable, and as valid as what they do: producing the "raw material."
The blogger's product has to be second order. It has to be derivative, parasitic. It has to be "mere" reaction, "just" opinion. It just has to be. Don't these bloggers realize that without journalists reporting the news there would be nothing to blog about?
It's kinda amazing to me how many hundreds of times journalists can make this point as if they are loosing it upon the world for the very first time, and no one with a blog ever thought of it. Over and over and over... Without journalists reporting the news there would be nothing to blog about?
Thing is, most bloggers do know that. They will happily admit that without the press they would be lost-- out of business, so to speak. But they also know that what Hamsher said is right: "If you want to know some obscure detail about something Judith Miller did or said in June of 2003 you call emptywheel." (At The Next Hurrah.)
In Monday's New York Times Katharine Seelye has an article for which she interviewed me over a month ago. It's quite good. Answering Back to the News Media, Using the Internet.
Subjects of newspaper articles and news broadcasts now fight back with the same methods reporters use to generate articles and broadcasts - taping interviews, gathering e-mail exchanges, taking notes on phone conversations - and publish them on their own Web sites. This new weapon in the media wars is shifting the center of gravity in the way that news is gathered and presented, and it carries implications for the future of journalism.
...The printing of transcripts, e-mail messages and conversations, and the ability to pull up information from search engines like Google, have empowered those whom Jay Rosen, a blogger and journalism professor at New York University, calls "the people formerly known as the audience."
"In this new world, the audience and sources are publishers," Mr. Rosen said. "They are now saying to journalists, 'We are producers, too. So the interview lies midpoint between us. You produce things from it, and we do, too.' From now on, in a potentially hostile interview situation, this will be the norm."
Now here is the part that curves back to our subject:
Reporters say that these developments are forcing them to change how they do their jobs; some are asking themselves if they can justify how they are filtering information. "We've got to be more transparent about the news-gathering process," said Craig Crawford, a columnist for Congressional Quarterly and author of "Attack the Messenger: How Politicians Turn You Against the Media." "We've pretended to be like priests turning water to wine, like it's a secret process. Those days are gone."
Crawford realizes what Keller and Sulzberger, apparently, do not: transparency is an adjustment mainstream journalists have to make to a shift in the balance of power. The shift is happening whether they make the adjustment or not. It's changing the terms on which trust is generated, and that change is unfolding whether journalists recognize it or not.
Keller and Sulzberger (and even more pathetically, Tim Rutten and Jason Zengerle) still think "transparency" is some kind of buzzword or a laughable conceit invented by the cybernetically correct. But really it's about power and the distribution of knowledge.
Hell, no. The analogy fails on several grounds. First of all, you don't file a civil suit against a court for damages. You appeal its rulings. There is no appealing the editorial judgement of the NY Times.
Second, you cannot bring a successful suit against a government agent, such as a cop, soldier, or judge, for legal actions taken in the course of carrying out his or her duties. You never could. But you can if it's a corporation, pursuing its actions out of a profit motive. That's how corporations are forced to consider the human costs of corporate decisions. That's how corporations are discouraged from manufacturing a defective and dangerous product.
If a news story is factually incorrect and/or compromises national security - ESPECIALLY during a period of armed conflict, then that news organization has manufactured a defective and dangerous product, in pursuit of profit.
If they profit, great. But there must be a meaningful moral hazard to their decision: If someone suffers damages, and can point to the editorial posture of the Times as directly contributing to the events causing those damages, then a jury may be convinced that the victims should be made whole, and find the Times liable, in part, for their reckless disregard of public safety.
Was National Security compromised? I don't think serious observers will doubt that it was. We learn a great deal from SIGINT. Every daily intelligence brief I read in Iraq had a SIGINT component to it that was extremely interesting.
I'll put it this way: Either we were able to monitor Al Qaeda's calls to US residents or we were not. If we were, then it was a valuable intelligence resource, by definition - even if we never picked up evidence of a single op in so doing. Merely the capability is a powerful thing to have.
If we were not able to monitor AQ comms with US residents, then there was no invasion of privacy.
As for the Echelon project, that's old news going back to the late 1990s. What on earth did people think the NSA did all day?
No one yet has been able to demonstrate any damages from the program. Except maybe terrorists.
Nonsense. There is no legal doctrine and no law which absolves the press of culpability of anything, nor should there be. The press, in the aggregate, is simply a collection of for-profit enterprises. Even the nonprofits, like NPR, hire for profit freelancers.
The existence of libel laws alone puts paid to your argument that the press is absolved of a damn thing. If you trash someone's reputation in print, you may be held liable for damages. There are certain differences in the standard of proof required to demonstrate libel, but these exceptions attach to the VICTIM of libel, not to the newspaper.
For example, if a regular joe sees his name in the paper, and it tarnishes his reputation, all he has to do is show damages, to win the claim. That's it.
The newspaper, then can only rebut by PROVING that the information is true. Truth is an absolute defense, but the burden of proof in rebuttal is on the newspaper, not on the plaintiff.
If the subject of the story is a public figure, though, the burden of proof shifts somewhat - the victim must not only demonstrate that he or she was damaged, but that the newspaper acted out of "actual malice." I.e., a deliberate intent.
If this can be demonstrated, a claim can be successful. The newspaper can then try to rebut the claim by demonstrating its truth, but that is no different than in the first instance.
Whether the newspaper was executing its responsibilities to the public is a matter to bring before juries, but there is nothing in the law which absolves a newspaper from civil liability for actuall causing damage to individual private citizens. They are exactly like every other profit making entity in this regard. As it should be.
Newspapers are not above the law.
The very fact that people here can post to the effect that newspapers are "absolved" of anything under the law by the very fact that they are newspapers is kind of disturbing in itself.
Is there really that much Kool-aid being drunk?
"I think we can all agree that the story itself and the revelations in it are more important than the transparency and timing questions. "
I think that's overreaching, as comments here clearly indicate.
I think Bush believed he was taking legal actions, and I think he will probably turn out to be wrong. I don't believe political enemies were targeted but, given the FISA court's unprecedented disagreement with the warrants, it seems more than possible that the goal was not to save time, but to avoid legal challenges and scrutiny. That sort of thinking is exactly why we require warrants in the first place. I doubt the wiretaps were fundamental to national security, and I don't think publication of the story threatened security.
I don't want to debate those issues; I just want to forestall the inevitable assumptions about political bias when I say that the Times' behavior disgusts me, and the various media critic responses confuse me. But I keep wondering if I'm unaware of some fundamental distinctions that would make this all clearer.
For example, if the New York Times is threatening national security in publishing the story, then I can't see why Simon & Schuster is not guilty of the same crime in publishing a book on the subject. But I haven't seen any mention of this--has Bush called in the publishers to personally ask them not to publish this book?
The administration's attack on the Times for publishing the story seems designed purely to rouse up the base and create a controversy. This seems obvious, but I've not seen anyone mention the free pass given to the Simon & Schuster or wonder why. (apologies if I've missed it.)
Similarly, I haven't seen much focus on James Risen. He had to have told the publisher about the wiretaps in order to get the book deal, which naturally increased the risk that the story would get out. So clearly, getting scooped *or* getting the story out wasn't quite as important as getting the book deal.
Keller makes it clear that the decision was based solely on the upcoming book release (despite occasional mention of "new reporting"). So did he know about the publication months ago, or just a couple weeks ago? If the former, then it's difficult to understand why he would hold onto this story until a couple weeks before the book. Unless, God forbid, it was an attempt to ward off White House criticism ("sorry, Mr. President, but the book's coming out. Our hands are tied.")
Keller seems to be asserting that he only recently learned of the contents. Huh? James Risen learns of illegal wiretaps, President Bush personally asks them to withhold the story, Risen was apparently unhappy with the decision, Risen asks for leave when he gets a book deal, but Keller doesn't know what the book's going to be about?
So Risen shrugs off his paper's decision to hold his story, and goes off to sell his tale to a publisher, like all good Times reporters do. The NY Times cheerfully withholds an important story at the request of a president, but shrugs and publishes it not because they changed their mind about its importance, but because they were going to be scooped.
At every point in this incident, the NY Times and Risen made decisions based not on good journalism, public responsibility, or national security, but rather prestige, money, and maintaining their White House relationship.
I can't understand in light of these actions, how anyone can possibly argue that the story itself was important. I see no evidence that the NY Times, Risen, or even the White House thought of it in that light.
Do you disagree that the law is now settled (Pentagon Papers) that Newspapers are free to legally publish whatever they discover during the course of their duties?
Hell, no. The Pentagon Papers case established no such thing. The court specifically excluded a scenario in which a hundred young men would die from disclosure of classified information "whose only offense was that they were 19 years old with low draft numbers." The consensus in that particular case was that the national security damage was largely conjectural. A deductive reasoning process would lead one to conclude that the court left open a recognition of a legitimate interest of the government to impose prior restraint in some circumstances.
Justice White, for example, writes such in so many words, in his separate opinion supporting the newspapers in that particular case:
“I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.
White recognizes that the government's burden is heavy in such a case, but specifically allows for it with reference to ongoing "plans and operations." It seems pretty clear to me that the NSA monitoring would qualify as an ongoing operation, and even the defendents in the Pentagon Papers case were careful to differentiate their particular case from a situation in which ongoing and specific operations were compromised.
So much for the "free to publish whatever they discover" fantasy.
But it doesn't stop there. Although Justice White did not want to grant an injunction to the government in this PARTICULAR instance, he did go on to call for the criminal prosecution of the New York Times and Washington Post under specific statutes.
White specifically cited section 793(e) of 18 U.S.C., on unauthorized possession of a document relating to the national defense, as well as sections 797 (graphical representations of military installations) and 798 (code and cryptographic information), and wrote: “I would have no difficulty in sustaining convictions under these sections on facts that would not justify…the imposition of a prior restraint.”
So while the government's burden to impose a restraint on publication is indeed heavy, the press does not have a blank check, under the first amendment, to compromise national security and endanger the safety of thousands in pursuit of a scoop. Nor are they allowed to violate the law by obtaining classified documents in so doing. In that respect, journalists are under exactly the same law as everyone else. As it should be.
Do you disagree that the 'national security' criteria (as applied to this issue by the Times) are largely a form of self-regulation.
I wouldn't trust the New York Times or any other newspaper to "self-regulate" the contents of an employee refrigerator. An unaccountable institution such as the New York Times cannot meaningfully self-regulate. Occasionally, and industry can band together and create an independent self-regulatory body, such as the National Association of Securities Dealers. But in the absence of such a body, with actual enforcement authority, the brand of "self-regulation" to which you refer is meaningless, amounting to quite the same thing as no regulation at all.
I think what we see today is more a matter of prosecutorial discretion than self-regulation. As I wrote above, I don't think there is a particular interest in criminally prosecting the NY Times or its employees, based on what I now know. I do believe that a criminal investigation into the leak is in order, and that the reporters could properly be compelled to testify as to the identity of the leakers, or risk being found guilty of either contempt of court or obstruction of justice.
I do not believe that a reporter's obligation to protect a source extends to covering up a federal crime and stonewalling an investigation. They should hold out until a court directs them to, and the courts can weigh the issue, but the courts are independent of the Executive branch. If a court directs them to answer the prosecutor's question, like the rest of us, they must answer, completely and truthfully. Reporters, again, should be covered by the same laws that cover everyone else.
Do you see a special role for the press in a democracy
Yes. A role. Not a "special role." Unless newspaper staffs also qualify for the Special Olympics. Some of their coverage makes me wonder.
And the necessity for some form of immunity to make this role effective?
No. You're reporters. Not ambassadors. Get off your high horses.
If you do, what is your prescription for resolving the tension between that special role and the for-profit motive?
News outlets are bound by the exact same laws that cover the rest of us, with regard to outing covert agents and revealing classified information. Simultaneously, though, there should be certain defenses - with the burden of proof on the news organization - in rebuttal:
1.) The defense could show that the classified plan or op revealed clearly violated the law. Illegal actions cannot be permitted the same classification protections as legal actions.
2.) The defense could show that the information revealed was improperly classified. That is, the government classified the information not to protect National Security, but to save the executive branch from embarrassment.
And again, I would be open to strict liability for news organizations who do choose to reveal classified information. If that information results in the failure to detect a terrorist attack, for example, and it can be demonstrated that had the intelligence gathering procedures not been compromised by exposure in the press, such an attack could likely have been prevented, and the plaintiffs can show a reckless disregard for public safety, that the news organization that published the information, along with the leakers, be required to help make the victims whole. Just how much of a contribution the news organization made to allowing a terror attack to become possible would be fact-dependent, and up to a jury.
Case in point: There is currently a Spanish Language Radio station in San Antonio that is taking calls and publishing the movements of Border Patrol agents in the area. If an agent is ambushed and injured or killed based upon this information, I would support a strict liability against the radio station, for its reckless disregard of public safety and for its aiding and abetting a crime.
I, on the contrary, believe that a free and vibrant press is an essential precondition for democracy to survive.
Sure it is. So are a lot of things. So's a free and public education. But we expect teachers to obey Federal laws, too, just like the rest of us.
Not incidentally, a sound and effective means of gathering intelligence on our nation's enemies during a time of war is also essential for the survival of the Republic. The problem is that too many journalists are operating as if the First Amendment were the only obligation of the government in the constitution, and so disregard other, coequal passages, such as that bit in the preamble about "provide for the Common Defenfse, and promote the general welfare."
As much as it makes journos heads explode to hear, there are limits to the First Amendment. They're already codified into law. Libel laws, for one. Slander and defamation laws for another. Yes, they tend to be civil in remedy, rather than criminal. But how about hate speech regulations? How about laws against assault, which include prohibitions against threatening, verbal assault, and "fighting words."
To use a tired analogy, your precious First Amendment does not give you the right to yell "fire" in a crowded theater, any more than the second amendment allows me to own a nuclear missile - even in theory.
There are all kinds of reasonable limitations to constitutional liberties already encoded into law. Among them is the release of state secrets and the outing of covert agents and means. The government's burden of proof is heavy when it comes to the press. But it's there.
So stop trying to argue as if those legal restrictions and counterbalances don't exist.
If the New York Times published detailed instructions for converting fissile material into a nuclear bomb tomorrow - or publicized the kind of information the Rosenbergs provided to the Russkies for which they were quite reasonably executed, you're darned right there'd be a criminal penalty.
The rest is a matter of degree.
Mr. McLemore: Jason, who exactly has argued 'those legal restrictions and counterbalances (on the 1st Amendment.don't exist?'
I was referring to this 2 Jan, 10:38 AM passage from Mr. Village Idiot:
Do you disagree that the law is now settled (Pentagon Papers) that Newspapers are free to legally publish whatever they discover during the course of their duties?
re you saying that the publication of the NSA's intercept story is the equivalent to publication of nuclear secrets or, as others suggested, troop movements.
It's a continuum, clearly - and some information will reside on one side of the SCOTUS test for a prior injunction from the Pentagon Papers case and some will reside on the other, and it's a judgement call which is which.
The revealing of nuclear secrets would clearly warrant a priori restriction, and trump the first amendment, in that case. In the case of compromising troop movements, that circumstance would be somewhat less clear.
What has been compromised here is the US's ability to discern the enemy's movements. It is exactly the inverse of having our own troop movements compromised, except that when we are rendered blind, the cost of that loss cannot be calculated in advance.
C.f. Joe Hooker at Chancellorsville, who had dispatched his available cavalry 40 miles from the fight (dumb), and was then deterred from the offensive by underestimating an inferior force in front of him (2 divisions under Jackson), thanks to his lack of cavalry. And then when he dug in in the thick woods to await Lee's attack, Jackson fixed him in place and flanked him.
The difference: Intelligence. Jackson had conducted a reconnaisance, and located the flank of Hooker's army and an avenue of approach to it.
Hooker, in contrast, was blind.
In modern assymetrical warfare, the NSA is our cavalry. SIGINT is our picket line. It is our screen. You can't draw a line on a map to depict it, but it is there, and it is vital. Without it, like a civil war army without its cavalry, we are made blind.
The New York Times relevation has made us blind.
unless Jackson had dedicated a very large portion of his reconnaisance team to going around peeping in random people's keyholes and cupping their ears to random people's doors in an effort to find out if they information on Hooker's troop movements, this is possibly the absolute dumbest analogy I've seen here at PressThink in quite some time....
The keyword is random. And there was nothing random about Stuart's and Jackson's reconnaisance, nor about the tapping of Al Qaeda phones. Before you go about calling an analogy dumb, be sure you understand the fact pattern of both incidents. You don't. For example:
One is that previous dem administrations had not been shy about domestic surveillance. Why should Kerry be more scrupulous?
Amy: ...because it would have been illegal?
There is nothing illegal about the surveillance of foreign agents for the purpose of gathering intelligence, with or without a wiretap. You don't understand the law, but the FISA law specifically lays out that foreign agents do not qualify for the protection of a warrant requirement, and further defines a foreign agent as a member of a foreign sect.
Clinton did it. It was legal when he did it. It's legal when Bush does it. And it would have been legal if Kerry did it, too. And there's no reason why he would not have.
Well, other than foolishness. And I wouldn't put anything past him.
Had Keller made some demands of the White House (i.e. insisted that the full membership of the Intelligence Committees of both Houses of Congress were aware of, and approved of, this program) there would be a case to be made on Keller's behalf.
Just who the Hell is Keller to be making "demands" of any elected official. The people elected Bush. I don't remember anyone ever electing Keller.
Expectations of "immunity." Making "demands" of the President. A "special role." Calls for a shield law.
It's pretty clear that the Fourth Estate is getting too big for its britches, and the time is ripe for it to be taken down a peg or two.
The investigation into the NSA leak might be a terrific opportunity to do this.
Either the information should have been published, or it should not be published because to do so would be too damaging to national security. If the Times were to agree to withhold an otherwise publishable story from its readers while "making demands" of the President or any other elected official, then that is a betrayal of its readers and an affront to the principles of journalism.
They would BECOME part of the story, instead of merely covering it. And that has been the New York Times' problem all along.
The Times should serve the people, report the news, write the occasional op-ed (even stupid ones!), and remember their place.
Okay, wingnuts, pay attention...
There are three stories here
1) The President of the United States has decided that he can ignored the Constitution, Congress, and the Courts, and the entirely panoply of the "checks and balances" system that ensures our freedom, and unilaterally decided that he can wiretap any American citizen he wants to, and do whatever he wants with that information.
2) The New York Times withheld this story from the American public (and, perhaps more significantly, their representatives in Congress) for over a year, and their publicly stated rationale for withholding, then publishing, the story doesn't add up.
3) Someone with access to top secret info blew the whistle on the program, and told the press, and the press published top secret info.
Now, #1 is a major story, and is rightfully being discussed in thousands of general interest blogs -- where the discussion is appropriate.
#3 is a non-story, except among the wingnut crowd...so if you want to discuss, go where likeminded people care about things. The reality based community, which actually cares about our freedoms, and not just torturing and killing muslims in the name of National Security, really don't want to be bothered banging our heads against the brick-wall of your unreason.
This is PressThink, and story #2 is the topic of discussion. Please stay on it.
ami. "Substantial" is open to nuance. It presumes a probability calculation. What's the cutoff? Zero isn't it, or we wouldn't bother with "substantial".
As I've heard it said, a U.S. person fails the test if he or she is an agent of a foreign power.
Richard, what "you heard" is wrong. Read the law. Its not terribly complicated. In fact, nobody seriously makes the argument you are making. The "legal" arguments are based on bizarro-world interpretations of the Authorization to Use Force in Afghanistan (AUMF), and/or equally bizarro-world interpretations of Article II of the Constitution which depend upon the existence of "plenary" powers of the President acting as "Commander-in-Chief" (i.e. the interpretation that says that when he wears his little "Hi! I'm the Commander-in-Chief" button during office hours, he doesn't have to obey any laws at all.)
Or, lets go over this one more time. An agent of a foreign power can be wiretapped without a warrant only if...
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;
Now I hate to break this to you, but being a "foreign agent" does not preclude you from being a "United States person." (see 50 USC 1801 (b)(2). ) And if a target of a wiretap is a United Stztes person, I don't think we have to worry about the "nuance" found in "no substantial likelihood" with regard to the conversation of a "US Person" being surveilled.
Indeed, if the target is a "United States person", I'd suggest that we can pretty much guarantee that "communication to which a United States person is a party" will be intercepted.
And according to the law, you can't do that unless you seek a warrant within 72 hours of doing so.
In practical terms, the law says you can't tap a domestic phone line without a warrant at all, because there is a "substantial likelihood" that "communication to which a United States person is a party" will be intercepted -- like when the "foreign agent" calls out for pizza.
What the law says is that unless you are tapping the phone of someone is who not known to communicate with any Americans, you gotta get a warrant. The President has full authority to tap the phone of some 18 year old madrasi in Saudi Arabia that he thinks is involved in terrorism, as long as there is no reason to think that this student is going to be calling Americans. If you think he might call an American, get a warrant.
That's the law. Now, you can try and argue AUMF, or "plenary" powers of the C-in-C, but please stop with this nonsense that there is some statutory provision that authorizes or even permits Americans to be surveilled without a warrant.
Jason's last post about US persons and agents of foreign powers brings up a point only a lawyer could love and a journalist find useful.
actually, the opposite is true, Richard. The only people who would find Jason's point "loveable" or "useful" are wingnuts, because the "point" Jason made is based on a deliberate and obvious misreading of the text of the statute in question.
One commentator said that the issue of "foreign powers" did not anticipate non-state actors and that al Q MAY NOT QUALIFY.
if you would bother to read the statute in question, you would realize that this "one commentor" did not know what he was talking about.
Point is, this is new territory, unanticipated and without any guidelines
no, the point is that you drawing conclusions based on false assumptions, after every effort has been made to provide you with access to the relevant facts.
For instance definition of a "foreign power" includes:
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
and the definition of an "agent of a foreign power" is described broadly as any person who acts on behalf of a foreign power. So, if someone is collecting intelligence for al Qaeda, they are an "agent of a foreign power" despite the fact that al Qaeda is a "non-state actor."
So, when Jason says stuff like If you're an agent of Al Qaeda, you don't qualify as a "United States Person" and follows it up with If the left wants to demonstrate its fundamental unseriousness on the War on Terror and argue that it does, then I can't wait for the 2006 elections he reveals himself for what he is -- a right-wing propagandist who is completely divorced from the facts.
Jason represents the right-wing noise machine at its most insidious and dangerous, because he spread lies solely for ideological purposes. No serious person -- and by "serious" I mean intellectually honest -- can read the relevant laws and do anything but conclude that you can be both a "United States person" and an "agent of Al Qaeda."
Jason represents the worst aspects of the lynch-mob mentality --- driven by fear and hate, they are not merely willing, but eager, to deny anyone thought to be a terrorist the basic rights afforded to Americans under the Constitution. And in an environment where the President says "you are either with us, or with the terrorists" this kind of mentality is especially dangerous, because when someone says "no, Mr. President, you cannot do that" the mob mentality sees the critic as no longer "with us" but "with the terrorists."
That's why simple facts are so important, and why ignorance of simple facts (like the actual provisions of the FISA act) can be so dangerous. Its why good journalism is so important -- and the lack of good journalism is so dangerous. Its why the media has the responsibility to not merely present the facts, but to ensure that falsehoods are not accepted as facts because the media doesn't discriminate between "spin" and "facts."
The news of the 'miracle' broke only minutes before midnight. Family members jubiliantly shouted that 12 had survived. And the news spread like wildfire. W. Va. Gov. Joe Machin was on TV, thumbs up, saying that miracles happen.
Except, of course, they didn't. The Times and the Post weren't the only media to go with the miracle story. AP did too, and 400 frontpages at the newseum.org suggest a lot of newspapers did too. CNN treated it as great-news story for three hours until a miner's wife notified Anderson Cooper that only one miner had survived.
This is the nightmare of every reporter: to be on deadline as major news breaks and it turns out, later, to be 180-degrees wrong. What went wrong? Later reporting suggests that the mining company was less than open with families about the deaths below ground.
The mining company now says they never gave confirmation that 12 had survived, that the news passed on to the families from someone who overheard a cell phone conversation.
The information flow was confusing at best. Gov. Machin told reporters later, ""All of a sudden we heard the families in a euphoric state, and all the shouting and screaming and joyfulness, and I asked my detachments, I said, 'Do you know what's happening?' Because we were wired in and we didn't know."
It's the hardest lesson in journalism that you only can report what you know. And sometimes you have to wait until you know for sure. But I keep thinking what would I have done that night in West Virginia. And I'm afraid I might just have done exactly as the Times, the Post and dozens of others did: Report what I thought I knew.
The governor later indicated he was uncertain about the news at first. When word of survivors began circulating through the church, he hadn't heard it, he said.
In my mind there's sort of three separate "stonewalling" issues. One is why hold the story, two is why publish now, and the third is why not talk about the Bush meeting.
In my head the first two are related as to why they won't elborate and its a combination of your choices 1# and 2#. They probably were advised by lawyers about the Times legal liabilities. There's nothing more frustrating than trying to talk to a lawyer about something like this. I'm sure everyone wanted to know what was "safe" and what wasn't. But lawyers' answers can sometimes sound like that advice about abstinance, "the only way to protect yourself is not to do it." Maybe they weren't "sure" of the story (or maybe they were just being cowardly). But whatever...it does seem like fear was a big part of the decision making process in 2004.
So back in 2004 Keller, Sulzberger and Co. have their meeting with Bush, they walk away thinking "maybe he's right, maybe this is *dangerous*" their lawyers don't give them a lot of confidence about liabilities. So yes, they make kind of a gutless move to hold the story. And they hold it, and hold it and hold it (while admittedly doing more research).
The "Why publish now" I think does lean more towards Risen's book being published than the Patriot Act renewal. Considering how non-strategic the Times really is, I honestly can't see them publishing a story like this that they've held for YEAR just because of the Patriot Act renewal. It might have been discussed by some of staffers as a reason to go forward sure, but I think Risen is the bigger bell that rang.
But I can't see a newspaper in the WORLD coming out and saying "yeah we held back the first time because we basically scared off by things the WH said and things our lawyers said, but once one of our own reporters was going to publish a book first we realized we had to get to it first or look even worse." This is what I was talking about when I said I could see "embarrassment" as a reason for the lack of transperacy. Because maybe they believed Bush or maybe they were just worried by their lawyers, but the NYTimes comes out looking kind of gutless if they held a story on the President's say-so.
By the way...the one thing I'm confused about it how many meetings with Bush did Keller and Co. have? Was there one in 2004 and then one in December 2005 just before they published? Or did they only have one meeting with Bush when he said "Don't publish" and they followed his instruction. Or did the Times honchos have a second meeting in 2005 where all the same reasons were trotted out but this time they didn't believe him?
As for why not to talk about the Bush meetings...I do kind of wonder if this is some kind of weasly "half-measure" that's meant to appease the White House. Like maybe a lawyer said "well this is clearly going to make the WH angry, but if we don't talk about what he said to us maybe they'll back off in our good faith effort?" That's the only logical explaination I can think of for why to withold that information. Because the Bush meetings, and whatever was said during them, are not "embarrassing" to the NYTimes the way their reasons for holding the story *may* be.