Lawrence R. Velvel: the NYT's Unconscionable Decision to Sit on the NSA Story

Lawrence R. Velvel: the NYT's Unconscionable Decision to Sit on the NSA Story

The NYT's Unconscionable Decision to Sit on the NSA Story for a Year

By LAWRENCE R. VELVEL

The one year delay in The New York Times' revelation of the warrantless electronic eavesdropping remains inexplicable. The Times' ombudsman, Byron Calame, wrote last Sunday that the high Times officials involved -- Bill Keller and Arthur Sulzberger -- refused to give any adequate explanation or to answer his questions. It did seem to Calame, however, that in effect they were claiming that to explain would be to give the government leads it could use to track down (and punish) the whistleblowers, the people whom one other writer, Jonathan Alter, believes are the true patriots here because they exposed serious governmental wrongdoing.

Such a claim by Keller and Sulzberger, which is no doubt being made in fact, strikes me as unpersuasive. For as has been discussed here before in regard to Times revelations about planes used for CIA renditions, it is always possible to sufficiently describe events in ways that make it impossible to know the whos and wheres of a situation, yet to know in some depth what occurred. One retreats where necessary to higher levels of abstraction that do not reveal specific actors or places. Not to mention that it is difficult to know how one can reasonably expect the details of the revelations to remain secret for long anyway, when, according to The Times itself, about a dozen government officials were part of the process.

Keller did say, however, that the forthcoming publication of a book by one of the reporters who broke the story, James Risen, a book that apparently would have disclosed the secret surveillance, was not the reason the disclosure article was finally printed. (Calame appeared to display a certain incipient dubiousness about this statement.)

And though, in prepared statements, Keller did not mention the November 2004 presidential election or say whether The Times learned of the eavesdropping before or after that election, he implicitly appeared to deny that the election had anything to do with The Times' failure to print the story in 2004. He said that:

The 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.

One might add, indeed, that if the election were the cause of The Times' delay, why didn't it publish the article after the election but without waiting a full year?

Nonetheless, the suspicion that the election may have had something to do with the story initially being withheld will not down. Perhaps the election's "only" impact was that, due to desperation arising from the possibility that disclosure prior to the election would increase the possibility of defeat at the polls, Bush really laid his claims of national security on The Times thickly, stridently, before the election, at a time when the paper may not have been as sure as it was later that his claims were bovine defecation. Here is what Keller said in his prepared statements in regard to this point and in regard to why The Times later changed its mind and published the story:

A year ago, when this information first became known to Times reporters, the Administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security. Officials also assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.

We also continued reporting, and in the ensuing months two things happened that changed our thinking.

First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgement on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood. (Emphasis added.)

Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well-known. The fact that the N.S.A. can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the N.S.A. has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority -- not the need for a robust anti-terror intelligence operation -- that prompted debate within the government, and that is the subject of the article.

Suspicion that Bush may have laid it on really thick the first time is only increased because of an online article by Newsweek's Jonathan Alter about what subsequently happened in December of 2005, a year later.

No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on Dec. 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president's desperation.

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden's use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists -- in fact, all American Muslims, period -- have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that "the fact that we are discussing this program is helping the enemy." But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a "shameful act," it was the work of a patriot inside the government who was trying to stop a presidential power grab.

No, Bush was desperate to keep the Times from running this important story -- which the paper had already inexplicably held for a year -- because he knew that it would reveal him as a law-breaker. He insists he had "legal authority derived from the Constitution and congressional resolution authorizing force." But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing "all necessary force" in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

Curiously, Alter does not make clear whether his statements about Bush's desperation are his own view, or are the view transmitted to him by the unidentified sources from whom he learned of the December 6, 2005 meeting and who may be privy to the reaction of the Timesmen to that meeting. One assumes the view is that of Alter himself, but you never know.

There are, one thinks, two points emanating from all this. One is a question. Keller says it is (and in 2004 I think was) well known that the government engages in surveillance. Nonetheless, Keller's statement also says The Times initially eschewed publication in part because "Officials also assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions." (Emphasis added.) Then his statement says publication ultimately occurred in part because "we developed a further picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgement on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood." (Emphasis added.) The question which obviously arises is this: Especially since Keller says it is (and I believe was) well known that the government is engaging in surveillance, why did publication depend upon what people within the government said was the legality or illegality of the program? Why the hell didn't The Times (confidentially) consult its own lawyers, who could have told it in a New York minute, in 2004, that what was being done by the government was flatly in violation of the law?

Is it possible that The Times did consult its own lawyers, who told it not to publish for one reason or another? That is what happened in the Pentagon Papers case, you know, so The Times had to get itself a new lawyer there. If it did consult its lawyers about the electronic surveillance and they told it, for any reason, not to publish, then it needs new lawyers now, as in the Pentagon Papers matter. Somehow or other, however, I am dubious that The Times consulted its lawyers in 2004. Somehow or other I would bet that The Times, as Keller said, (inexplicably) relied solely on the soothing statements of government officials, notorious liars all, it would seem, right up to Bush himself. In any event, the question of whether The Times (very negligently) relied solely on the statements of government officials in 2004, without even bothering to consult its own counsel, cries out for answer.

The other point of enormous relevance is the issue of whether The Times did in fact learn of the warrantless surveillance before the 2004 election, and was persuaded (strong- armed?) before the election not to print the story. This too cries out for an answer. George Bush was not elected by the American people in 2000. He was elected by denying the vote to blacks in Florida, by the ballot skullduggery that caused votes to be cast for Buchanan rather than Gore by members of that famous political organization called "Elderly Florida Jews for Pat Buchanan," and by the Supreme Court, whose latest nominee is the subject of hearings that begin in a few days. Is it possible that, after being elected by denying votes to blacks, by misleading members of "Elderly Florida Jews for Buchanan," and by the Supreme Court, Bush got himself reelected by persuading The Times not to publish the news of his lawbreaking prior to the 2004 reelection and by The Times acceding to this? The Times plainly should let us know the answer to this horrid possibility.

Lawrence R. Velvel is the Dean of Massachusetts School of Law. He can be reached at velvel@mslaw.edu.

*This essay represents the personal views of Lawrence R. Velvel.