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Eric Lichtblau's Defense Of The Times' Disastrous Failure To Print The NSA Spying Story in October 2004

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May 20, 2008

 Re:  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. 

            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 the 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 Lichtblau 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 blows 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 immediately, 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.”  (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, the 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.)

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.

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