Summary: I argue here that, in addition the timing of the NYT NSA spying story vis a vis the election, there is another coincidence in the NYT holding the story that bears attention. As described by the NYT, Dick is the public advocate for this NSA spying program. Which means the NYT may have been holding this story based on OVP reassurances at the same time as they were abetting the coverup of OVP's role in the Plame Affair.
I am among those who is outraged that the NYT held off on publication of their NSA domestic spying story for a year. As many have pointed out, a year would take us back almost to the election. Did they know about this before W got reelected? Did they allow themselves to get fooled, based on national security grounds, into holding off on a story that would surely (well, hopefully) have hurt Bush's reelection bid? We don't know the answer to this question, but we sure ought to know.
But there is something else we know NYT to have done, which really suggests a disturbing pattern of behavior. During the Fall of last year, NYT managers were involved in discussions that made it pretty clear that Scooter Libby was trying to obstruct Judy's testimony. As they describe in their tell all,
Ms. Miller authorized Mr. Abrams to talk to Mr. Libby's lawyer, Joseph A. Tate. The question was whether Mr. Libby really wanted her to testify. Mr. Abrams passed the details of his conversation with Mr. Tate along to Ms. Miller and to Times executives and lawyers, people involved in the internal discussion said.
People present at the meetings said that what they heard about the preliminary negotiations was troubling.
Mr. Abrams told Ms. Miller and the group that Mr. Tate had said she was free to testify. Mr. Abrams said Mr. Tate also passed along some information about Mr. Libby's grand jury testimony: that he had not told Ms. Miller the name or undercover status of Mr. Wilson's wife.
That raised a potential conflict for Ms. Miller. Did the references in her notes to "Valerie Flame" and "Victoria Wilson" suggest that she would have to contradict Mr. Libby's account of their conversations? Ms. Miller said in an interview that she concluded that Mr. Tate was sending her a message that Mr. Libby did not want her to testify.
According to Ms. Miller, this was what Mr. Abrams told her about his conversation with Mr. Tate: "He was pressing about what you would say. When I wouldn't give him an assurance that you would exonerate Libby, if you were to cooperate, he then immediately gave me this, 'Don't go there, or, we don't want you there.' "
Mr. Abrams said: "On more than one occasion, Mr. Tate asked me for a recitation of what Ms. Miller would say. I did not provide one."
In an e-mail message Friday, Mr. Tate called Ms. Miller's interpretation "outrageous."
"I never once suggested that she should not testify," Mr. Tate wrote. "It was just the opposite. I told Mr. Abrams that the waiver was voluntary."
He added: " 'Don't go there' or 'We don't want you there' is not something I said, would say, or ever implied or suggested."
Telling another witness about grand jury testimony is lawful as long as it is not an attempt to influence the other witness's testimony.
"Judy believed Libby was afraid of her testimony," Mr. Keller said, noting that he did not know the basis for the fear. "She thought Libby had reason to be afraid of her testimony."
Ms. Miller and the paper decided at that point not to pursue additional negotiations with Mr. Tate. [emphasis mine]
Even in their own story, the NYT is clear. The people involved in the negotiations with Libby--not just Judy, but NYT lawyers and editors--were troubled about the negotiations. And while Bill Keller didn't know precisely how Libby was, effectively, asking Judy to lie for him, he did know enough to be troubled.
Now, it seems the proper thing to do at this point would have been to tell Fitzgerald Libby was trying to coach testimony. It seems this coaching should have made Judy and the NYT aware that Judy wasn't protecting the First Amendment, but was protecting someone who was actively hiding criminal behavior. And even barring going to Fitzgerald to tell him about Libby's coaching, you'd think Keller would have at least asked Judy what Libby was trying to hide so he could have better assessed what was going on.
But that's not what the NYT did. Instead, Judy--and the paper--decided not to continue negotiations. Oh, and they also decided to stage an intense campaign to shift the meaning of Judy's subpoena, from being one of protecting one source to being the protection of the First Amendment generally. Was it a sense of guilt that made the NYT make this a general First Amendment issue? Or were they trying to give Libby more cover?
In either case, by not having Judy testify in Fall 2004 (to the coaching, at least), the NYT allowed Libby to succeed in his attempt to kick sand in the ref's eyes, as Fitzgerald said. They enabled Libby to forestall a perjury indictment and therefore put off the discovery of OVP's larger role in this issue. Untill after the election, coincidentally.
And meanwhile, I feel certain, they were negotiating with Libby or the people Libby was trying to protect about this NSA spying story.
Now let me clear. The story--and this MSNBC story--make it clear that Bush is the one who ordered this program. I'm not at all saying that Bush shouldn't be held responsible for violating the Constitutional protection against unreasonable searches.
But I am saying that Dick's office was clearly at the center of this program, and someone in Dick's office (Libby? Addington? Dick himself?) was likely one of the sources who asked NYT not to publish the story.
Most of this NYT article names Bush directly (particularly when talking about this executive order) or uses the metonymic White House to refer to those behind the program. But when it provides more details to claim there has been adequate Congressional oversight of the program, it names Dick's office.
After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney's office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.
Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.
Which perhaps makes sense, since Bush tasked Cheney to deal with the intelligence services. But it puts OVP in the role of the advocate for the program, at least when they presented it to Bob Graham, Pat Roberts, Porter Goss, and Jane Harman (and probably Daschle, Lott, Hastert, and Gephardt). And Dick is still the advocate for the program; he got sent (with Andy Card) to Congress yesterday to deal with the resulting uproar (this from the MSNBC article).
Vice President Dick Cheney and Bush chief of staff Andrew Card went to the Capitol Friday to meet with congressional leaders and the top members of the intelligence committees, who are often briefed on spy agencies’ most classified programs.
As I've been reminded in an email from Mark Schmitt, the recent Murray Waas story on Frances Fragos Townsend provides further evidence that OVP--particularly Scooter Libby--would be at the center of this program. One of the reasons Libby was so opposed to Townsend's appointment, recall, was his concern that she would be too cautious in using wiretaps in the pursuit of terrorists.
Libby, Addington, and others also had concerns that as a Justice Department official, she had been too slow in invoking the Foreign Intelligence Surveillance Act, the mechanism by which the government seeks court approval for wiretaps and other electronic surveillance of potential terrorists and spies. Townsend, who declined several requests to be interviewed for this article, has said that in refusing the FISA requests, she was only following the law; that she did not want to jeopardize potential prosecutions by allowing wiretaps that would later be thrown out in court; and that the rules for such electronic surveillance were much stricter before September 11.
Mind you, Waas is talking about the legal FISA wiretaps, not the illegal wiretaps Bush authorized under this new program. But if Libby and Addington were worried that the legal wiretapping would be too much for Townsend, I would imagine they were probably even more concerned that Townsend would object to the illegal wiretapping Bush had authorized.
Now, when the NYT describes how its editors were persuaded not to publish the story, they get more vague, reverting to metonymy.
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
Now this is just a guess. But I'm guessing that if Dick was the advocate for this policy to Congress, twice, he or his office has been its advocate with the NYT. Who were these SAOs? Not Tenet (who was gone by this time). Probably not Michael Hayden. Not Negroponte, who was still Ambassador to Iraq at this point. Andy Card? Dick Cheney? Abu Gonzales? Scooter Libby?
It's troubling enough that Bill Keller and Sulzberger decided not to publish this story last year. But it seems to be part of a larger pattern of extreme obeisance to OVP on the part of the NYT. At around the same time as Keller and Sulzberger decided it was alright if Bush wanted to ignore the Constitution, they decided they would help OVP elude the law. Quite possibly, they were knowingly shielding one of the guys who had talked them out of exposing Bush's Constitutional violations.
This, from our paper of record.
Update: Mark Schmitt suggestion added. Spelling of Jane Harman's name corrected.