An excerpt from NY Times reporter Eric Lichtblau's upcoming book, in which he discusses why the NY Times first sat on the NSA wiretapping story for a year, and why it eventually published the story.
For 13 long months, we'd held off on publicizing one of the Bush administration's biggest secrets. Finally, one afternoon in December 2005, as my editors and I waited anxiously in an elegantly appointed sitting room at the White House, we were again about to let President Bush's top aides plead their case: why our newspaper shouldn't let the public know that the president had authorized the National Security Agency, in apparent contravention of federal wiretapping law, to eavesdrop on Americans without court warrants. As New York Times Editor Bill Keller, Washington Bureau Chief Phil Taubman, and I awaited our meeting, we still weren't sure who would make the pitch for the president. Dick Cheney had thought about coming to the meeting but figured his own tense relations with the newspaper might actually hinder the White House's efforts to stop publication. (He was probably right.) As the door to the conference room opened, however, a slew of other White House VIPs strolled out to greet us, with Secretary of State Condoleezza Rice near the head of the receiving line and White House Counsel Harriet Miers at the back.
For more than an hour, we told Bush's aides what we knew about the wiretapping program, and they in turn told us why it would do grave harm to national security to let anyone else in on the secret. Consider the financial damage to the phone carriers that took part in the program, one official implored. If the terrorists knew about the wiretapping program, it would be rendered useless and would have to be shut down immediately, another official urged: "It's all the marbles." The risk to national security was incalculable, the White House VIPs said, their voices stern, their faces drawn. "The enemy," one official warned, "is inside the gates." The clichés did their work; the message was unmistakable: If the New York Times went ahead and published this story, we would share the blame for the next terrorist attack.
More than two years later, the Times' decision to publish the story—a decision that was once so controversial—has been largely overshadowed by all the other political and legal clamor surrounding President Bush's warrantless wiretapping program: the dozens of civil lawsuits; the ongoing government investigations; the raging congressional debate; and the still-unresolved question, which Congress will take up again next week, of whether phone companies should be given legal immunity for their cooperation in the program. Amid the din, it's easy to forget the hits that the newspaper took in the first place: criticism from the political left over the decision to hold the story for more than a year and from the right over the decision to publish it at all. But the episode was critical in reflecting the media's shifting attitudes toward matters of national security—from believing the government to believing it less.
After all, the fear and trauma that gripped the country in the months and years after 9/11 gripped the media, too; the country's outrage was our outrage. Coverage of 9/11 and its aftermath consumed all else for reporters in Washington. As federal officials scrambled to avert the much-feared "second wave" of attacks, reporters likewise scrambled to follow any hint of the next possible attack and to put it on the front page—from scuba divers off the coast of Southern California to hazmat trucks in the Midwest and tourist helicopters in New York City. One example of the shift: On Sept. 12, 2001, another major newspaper was set to run a story on the extraordinary diplomatic maneuverings the U.S. Secret Service had arranged with their Mexican counterparts to allow Jenna Bush, then 19, to make a barhopping trip south of the border. (She had just been charged with underage drinking in Texas.) A few days earlier, a scoop about a presidential daughter's barhopping trip getting special dispensation from the Secret Service and a foreign government might have gotten heavy treatment. But the story never ran, and the Secret Service's maneuverings remained a secret until now. In the weeks and months after 9/11, there was no longer an appetite for such stories.
At the same time, in the first few years after 9/11, stories that have now become frequent front-page fodder—about water-boarding of terrorism detainees and other aggressive interrogations tactics, about CIA "black site" prisons overseas, or about covert eavesdropping or other surveillance programs that stretched the limits of the law—simply didn't get written by most of the mainstream media. If we had known about them, which in most cases we didn't, there would have been a reluctance to publicize them in those early days of the war on terror.
I wasn't immune to the shifting in attitudes after 9/11. In early 2003, then-Attorney General John Ashcroft appeared at a congressional hearing I was covering and announced, with dramatic aplomb, the unsealing of indictments against two Yemeni men, including a radical cleric accused of personally delivering $20 million to Osama Bin Laden. There was more: The cleric, Ashcroft revealed, said he had received money for jihad from collection at the notorious al-Farooq mosque in Brooklyn. I didn't wait for a break to rush out the door of the hearing room and call our assignment editor, who would soon be preparing the story list for the next day's front page. "This is big," I told the editor. "Ashcroft says Bin Laden was getting money from a mosque in Brooklyn."
Sure enough, the story ran at the top of the front page of the next day's paper. But among my colleagues in the paper's New York metro section, there was much less enthusiasm: The story, our Brooklyn reporter thought, was overblown, the evidence of an actual link between the Brooklyn mosque and al-Qaida thin. His skepticism was borne out: While the Yemeni cleric was ultimately sentenced to 75 years in prison on terrorism charges related to his support of Hamas, the sensational charge that the Brooklyn mosque was used to raise money for al-Qaida and Bin Laden had melted away to all but nothing by the time the case concluded.
For me, the story about the Brooklyn mosque, along with others, like the justice department's wobbly case against "dirty bomber" Jose Padilla, were eye-openers. By 2004, I had gained a reputation, deservedly or not, as one of the administration's toughest critics in the Justice Department press corps; the department even confiscated my press pass briefly after I wrote an unpopular story about the FBI's interest in collecting intelligence on anti-Iraq war demonstrations in the United States. To John Ashcroft and his aides, my coverage reflected a bias. To me, it reflected a healthy, essential skepticism—the kind that was missing from much of the media's early reporting after 9/11, both at home in the administration's war on terror and abroad in the run-up to the war in Iraq.
That shared skepticism would prove essential in the Times' decision to run the story about Bush's NSA wiretapping program. On that December afternoon in the White House, the gathered officials attacked on several fronts. There was never any serious legal debate within the administration about the legality of the program, Bush's advisers insisted. The Justice Department had always signed off on its legality, as required by the president. The few lawmakers who were briefed on the program never voiced any concerns. From the beginning, there were tight controls in place to guard against abuse. The program would be rendered so ineffective if disclosed that it would have to be shut down immediately.
All these assertions, as my partner Jim Risen and I would learn in our reporting, turned out to be largely untrue. Jim and I had already learned about much of the internal angst within the administration over the legality of the NSA program at the outset of our reporting, more than a year earlier in the fall of 2004. Still, the editors were not persuaded we had enough for a story—not enough, at least, to outweigh the White House's strenuous arguments that running the piece would cripple a vital and perfectly legal national-security program. It was a difficult decision for everyone. I went back to writing about more mundane terrorism and law-enforcement matters, poking around discreetly to find out what had happened to the NSA's eavesdropping program. Risen went on sabbatical to write a book about intelligence matters. Then, one night in the spring of 2005, he called me out to his home in suburban Maryland and sat me down at his computer. There on the computer screen was a draft of a chapter called simply "The Program." It was about the NSA's wiretapping operation. "I'm thinking of putting this in the book," he said. I sat and stared at the screen in silence. "You sure you know what you're doing?" I asked finally. He shrugged.
Risen spoke with our editors about what he was contemplating, and so began weeks of discussions between him and the editors that ultimately helped to set the story back on track. Risen's book was a trigger, but we realized we weren't in the paper yet. We still had to persuade the editors that the reasons to run the story clearly outweighed the reasons to keep it secret. We went back to old sources and tried new ones. Our reporting brought into sharper focus what had already started to become clear a year earlier: The concerns about the program—in both its legal underpinnings and its operations—reached the highest levels of the Bush administration. There were deep concerns within the administration that the president had authorized what amounted to an illegal usurpation of power. The image of a united front we'd been presented a year earlier in meetings with the administration—with unflinching support for the program and its legality—was largely a façade. The administration, it seemed clear to me, had lied to us. And we were coming closer to understanding the cracks. By the time we met with White House officials in December 2005, Keller had all but made up his mind: The legal concerns about the program were too great to justify keeping it out of public view. The only real question now was not whether the story would run, but when.
That decision was helped along by a chance conversation I had soon after our White House meeting. The administration, I was told, had considered seeking a Pentagon Papers-type injunction to block publication of the story. The tidbit was a bombshell. Few episodes in the history of the Times—or, for that matter, in all of journalism—had left as indelible a mark as the courtroom battle over the Pentagon Papers, and now we were learning that the Bush White House had dusted off a Nixon-era relic to consider coming after us again. The editors in New York had already decided they would probably print the story in the newspaper for that Friday, Dec. 16, 2005, but when word of the Pentagon Papers tip reached them, they decided they would also post it on the Internet the night before. That wasn't routinely done at that time on "exclusive" stories because we would risk losing the scoop to our competitors, but the editors felt it was worth the risk. The administration might be able to stop the presses with an injunction, but they couldn't stop the Internet.
Phil Taubman called us into his office to hear the official word: We were publishing the story, Keller told us. Smiles washed over the room. Rebecca Corbett, who edited the story and had been a strong champion of it, inquired about the play it would get. There'd been talk of a modest one-column headline on the front page. She wanted to know whether we might be able to get two columns, maybe even three. This seemed like a story that would have legs. Keller demurred. He wanted the story to speak for itself; we would be discreet without looking as if we were poking the White House in the eye with a big, screaming headline about NSA spying. This wasn't the moment to quibble over the size of the headline. After all this time, after all the White House's efforts to derail it, we were happy to see the story in the paper at all; in the back of the A section, among the bra ads, would have been fine.
There May Be Hard Cases But... The FISA Story Isn't One of Them by David Barron, Harvard Law SchoolThe Times: Not Heroic. Simply Doing Its Job by Marty Lederman, Georgetown Law School
Reply to David Regarding The Times and the NSA Program by Eric Posner, Univ. of Chicago Law School.
NYT? What's Bush's Excuse for Keeping Law violations Secret? by Dawn Johnson, Indiana University School of Law - Bloomington
Good Disclosures and Bad Ones by Orin Kerr, George Washington University School of Law
Reply to Marty on NSA Program and The Times by Eric Posner
Defending by "Devotion to the Forms of Legality." "Verging on Fanaticism" by Marty Lederman
The Times, They Are aChangin by Deborah Pearlstein, Woodrow Wilson School for Public and International Affairs at Princeton
More on Marty, the NSA and The Times by Eric Posner
Eric's Surprising Argument for Why Bush Acted Irresponsibly in the FISA Case by David Barron
Should the Bush Administration Have Sought to Enjoin Publication of the NSA Wiretapping Story? by Eric Posner