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December 17, 2005



Thank you for bringing out this connection. I haven't seen anybody else raise this issue at all. It's easy to ignore all the acts of omission by the press in the last four years, but this demonstrates how far we've fallen that there seems to be so little outrage at these deliberate and blatant acts of complicity by the NYT (that's the New York Times for folks who need acronyms spelled out).

Cancelling subscriptions to NYT, boycotting their advertisers, and generally publicizing their shame is OK for them, but . . .

NSA staff who carried out these illegal orders must also be prosecuted (particularly since some of them refused to do carry them out, citing their illegality). Prosecuting them is an essential step in preparing for the impeachment of him who gave the orders.

Also, all who know themselves to have been illegally eavesdropped should take advantage of the provision of the law that permits civil lawsuits against the eavesdroppers and recovery of punitive damages.

does this mean


are you saying

that judy/libby testimony and

nyt/wh-ovp negotiations were connected in some sort of quid pro quo


if you guys(the nyt) will not be too persistent about the miller testimony, we'll give you info on or let you publish the nsa domestic spying story ?

or was judy covering the nsa spy story and using her clout over libby to get info?

who was extorting infor or permission from whom?

or are the two unconnected but coincidental?



I think the two, taken together, suggest that the NYT was willing to do whatever they could to ingratiate themselves with Dick and his minions.

For some time now (since Cronkite?), we regarded the Fourth Estate as a real quasi-branch of government, occasionally naughty but ultimately held to the same laws and accountability as the other branches, rather than as what it always has been: a set of companies with limited obligations other than to their owners' incomes.

Watergate has been written about as a loss of innocence for the country, when we collectively stopped trusting in the wisdom of politicians. I wonder if WMDgate, Plamegate, spygate, will someday be written about as when we lost our innocence about the Fourth Estate.

p.s. Out of curiosity, I just asked wikipedia what the other three estates are. Here's the answer: "In this context [Edmund Burke's 1837 possibly first use of the term], the other three estates are those of the French States-General; the church, the nobility and the commoners, although in practice the latter were usually represented by the middle class bourgeoisie." Known today as the religious right, the rich, and the Democrats.


The three estates had a pretty important role in the French Revolution. It was the insistence that the bourgeois third estate get a say that started the whole thing off.

And actually, many of our ideas of how the press is supposed to work as the fourth estate derive from the French R, although there are important precursors to the Cromwell era in England.

Bush angrily defends spying and breaking the law in this Saturday radio address.

I saw Fineman on Hardball with Matthews, speculating that the election would be the story and this spying kerfuffle a mere blip in the media radar.

Not according to the WaPo web page, which gives this story prominence. Not according to Google news, which leads with 1910 stories on the patriot act and follows with 1091 stories about spying.

From the LA Times:

Members of Congress demanded Friday that President Bush and his administration explain his decision to permit the country's most secretive intelligence agency to spy on American citizens in the United States after the Sept. 11 terrorist attacks without first obtaining warrants.

Democrats and some Republicans denounced the administration's action, describing it as an example of Bush's use of the threat of terrorism to assume new legal and intelligence powers and to limit civil liberties.


Remind mr... how many times has Fineman ever been right about anything?

ew - The Iraqi "elections" should be the headlines for the propagandists right now. Yet the fascists spying is now the story. We have seen stories the fascists want to be the top story replaced by stories they have to defend. Are the media (legitimately) trying to make up for the past by undermining the fascists now? Or is it just more mind f***s from both camps on the public?

In reading the Ken Auletta "New Yorker" story about Pinch Sulzburger and the Times, I was struck by how much seemed to hinge on Sulzburger's vanity, on his desire to be seen as a champion of the First Amendment. On the other hand, we now know he had a story on his hands that would have been almost as big as the Pentagon Papers, but he sat on it for the Bush Administration.

I wonder if some of his insistence on portraying Judy as such a hero was not just the old friendship, but a desire to hide from himself how much of a flunky he had become over the spying story. The article also shows him as very concerned about the business side of the paper, and he may genuinely have been afraid of repercussions from the malevolent parts of the Bush Admin, namely those involved in the Plame case. Hard to see them as more viondictive than Nixon, but times and the Times have changed.

Belatedly, the Waas story sure does show Libby/OVP's modus operandi in both cases. I'd say it nails Libby's coffin.

IMO, at least for the last three months, since Bush/Rove began actively trying strategies to distance themselves/scapegoat Cheney, the London Tube bombings probably played a significant role in the NYT’ calculus with respect to their negotiations to print this story. Since Cheney has had to a chance to taste the Bush/Rove medicine for low poll numbers, I speculate that Cheney's view of the story the NYT had changed into exactly what you describe it as. You do not state specifically that Cheney/OVP orchestrated the timing of this article for maximum damage to Bush. You probably have very good reasons for the way you left it, but I am interested.

I imagine that many of your readers are as thrilled as I am that you are fixing the responsibility for these unethical decisions at the NYT above the level of "reporter," Ms. Kornblut, and placing it with "squishy" editors and even more responsibility on the lawyers, executives, and Arthur Sulzberger. Froomkin, Dana Priest, Ann Kornblut and their ilk are the best hope for the MSM.

"Now, it seems the proper thing to do at this point would have been to tell Fitzgerald Libby was trying to coach testimony."
If you get a chance, I would be interested in your take about the responsibility of the attorneys at the NYT "to tell Fitzgerald." The NYT’s attorneys are getting rich off of all their billings for "negotiations" about Judy, and "negotiations" about the Bush lied story and many more we probably don't know about. Didn't these attorneys have an obligation to inform NYT in writing that it was their legal advice that the NYT inform Fitzgerald that "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."

Since the NYT apparently did not follow inform Fitzgerald, if you have the time and the inclination I am interested in what the NYT's lawyer's responsibility was/is to inform Fitzgerald, in their capacity as “officers of the court.” Would it irreparably break their professional ethics to write a private letter to Fitzgerald or with respect to the Bush spied story, Eliot Spitzer, or a Judge, or a U.S. Senator, or the New York State Bar?

OT: Scotty Pottie McClellan yesterday in his WH News Baffling, I mean briefing, stated that there had been oversight by the Senate for Bush's spying, meaning, "blame it on the Democrats, they knew all about this." I am hoping this strategy does not work as well for the WH as it did with respect to the War.
OT: Bush's declaration in 2004 about the "cessation of hostilities" in Iraq now may loom as a pretty large event with respect to Bush's spying. His comment pulled us back significantly from a "War footing," in the political/legal context. I wonder if the Senate can make the claim that this "erosion" of our civil liberties was significantly less defensible after Bush's declaration.

Emptywheel: Didn't Miller find the Valerie Flame name after she dusted off her notebooks doing a Rove-like 2nd search of her notes?

My guess is that the story saw the light of day finally because someone at the Times who was aware that the story was being held back threatened to take it somewhere else. (Indeed, the way the Times story was covered by the Post suggests that they had some advance warning.)

Although the reason "push came to shove" was the reauthorization of the Patriot Act, the VERY late release of the story suggests that Keller was perfectly willing to have the Patriot Act authorized without publishing. The story is central to the issues that make the Patriot Act controversial -- and should have been released weeks, if not months ago.

Its one thing to hold onto a story based on rather insubstantial "national security concerns" in the face of a Presidential election -- the provisions of the Patriot Act, and the question of spying on US citizens, was not a major issue in the campaign. Its an entirely different thing to withhold the story when it has a direct bearing on a controversial issue being discussed and voted on by Congress.

The story should have been released prior to hearings on the Patriot Act reauthorization. It absolutely should have been released prior to the House vote. Waiting until the 11th hour -- until the day the Senate was ready to vote on it -- strongly suggests that the Times never had any intention of letting this information out before more damage was done to our rights.

mainsail, I hope you don't mind me butting in. You are correct and the linked fdl credits emptywheel along with others, for predicting Judy's "dust bunny" before it happened.


Now, it seems the proper thing to do at this point would have been to tell Fitzgerald Libby was trying to coach testimony.

I have to disagree, though it wouldn't change the end result. Newspapers aren't supposed to be an arm of law enforcement, and the NYT had no obligation to specifically drop a dime on Libby to Fitzgerald.

But newspapers ARE supposed to inform their readers of what is going on, and the fact that a Plame witness was suborning another witness - an NYT reporter, no less - to perjury is newsworthy.

I doubt that confidentiality agreements extend that far anyway, but the NYT didn't even have to name names. Just saying that an unnamed witness was trying to spin another unnamed witness would have told us plenty.

Sure, as a byproduct it would have told Fitz just about everything, but that only shows that if you have an independent press, even prosecutors can read it in the paper.

-- Rick

In place of WH Baffling/Briefing,
what about White House Bluffing?


Alright, you've convinced me. They failed their duty to US.

Thank you egregious. I think I saw "bluffing," initially and could not remember it. "Bluffing" is a lot more accurate.

This was the last straw for me. The NYTimes doesn't exist anymore. Nothing they print is of any value nor trustworthy in any way. I refuse to read anything that comes out of the butts of their reporters.

If ANY of the so-called "reporters" (or is it stenographers?) at the NYTimes have ANY ethics or pride they would quit now. The fact that they aren't quitting speaks volumes. They are ALL liars and unethical puppets and pansies.

suborning perjury is an act of obstructing justice

failing to report the subornin of perjury is to participate in the obstruction of justice

the NY Times editors should be charged with crimes against the people of the united states

and some subscribers should file a civil suit to recover any money paid to the NY Times for the purpose obtaining accurate information

Laura Rozen has a couple of posts to the effect that James Risen, one of the authors of the NYT story, was coming out with a book, to be published in January. Do we have some sort of Woodward-in-reverse here where the paper decides it better get a story out before the book makes them look completely lame? Or is the release timed to boost sales of the book? What is the relationship of the Times to the publisher?

Marshall also shows the utter speciousness and phoniness of the Bush rationale for this program--the FISA court is set up to act expeditiously, and, in any event, wiretaps can begin on an emergency basis as long as a retroactive warrant is sought within 72 hours from this court which is specifically set up to be expeditious and friendly.

And, as Laura also asks, what on earth were they going to do with the info? Couldn't use it in court. Could use it to capture someone and declare him an enemy combatant, ship him off to Gitmo or one of the gulag prisons for torture, but what then? It is all so useless, so utterly useless. It only makes more problems for them. So what was it about? Macho power, making Cheney and Bush and Jphn Yoo feel good and big? Or real domestic spying that they would use against their political enemies, not in a court of law, but through leaks and blackmail?

How close we are to a police state.

Hi EW,
There's a good column by Waas out today discussing Jack Anderson, who was his old boss and who has died:


Though you might be interested (hat tip to warandpiece).

Do we have some sort of Woodward-in-reverse here where the paper decides it better get a story out before the book makes them look completely lame? Or is the release timed to boost sales of the book? What is the relationship of the Times to the publisher?

Here's a guess. Risen was forced to sit on the story for a year by Keller. Risen couldn't just go to another paper with the story, but what he could do is tell another paper that his book was coming out in January, and that story was in it.

Which he told Keller he was going to do, which got the story in the Times finally.

The existence of Risen's book raises even more questions about Keller's actions. It meant that there was NO REASON not to publish the story once he knew that Risen was writing a book that contained the information. But Keller doesn't make a move until the very last minute....

p luk

Yes, I think that's precisely what happened. They sat on it until they couldn't sit any longer. And Risen finally figured out how to push hard enough to get it published.

let me suggest why you do not go before a FISA court, no matter how supportive -

if you go before a court you leave a record, a secret record to be sure, but a record nontheless.

i'm wiling to bet the bush spying program was designed not to leave any record other than at NSA, which is a fortress nearly impossible to get any info out of.

so why do an end run around FISA in order to leave no record?

well, supopose that you wanted to know what your domestic political opponents were planing or saying in private.

suppose you wanted to know what diplomats supposedly protected by diplomatic immunity were saying or planning.

suppose you wanted to know what was being said or planned at the united nations in new york

suppose you were looking for some democratic legislators who had fled texas

suppose you wanted to learn opponents campaign strategems.

suppose the secret service could be used as a foil for justifying these activities

how to rule out these possiblites?


(help me out here)

maybe a statement to the effect that any and all eavesdroping activity was related directly to a specific threatened act of terrorism

or maybe a statement (under oath is better, no) that no domestic political activities of any kind were included in this spying program, even incidentally.

if a president would use a prompting device in presidential debates,

why wouldn't he use NSA to gain an advantage on his political opponents?

i'm betting this program not only did not stop at terrorism, but was really never designed with terrorism in mind.

A real test of character for the New York Times. Though neocons will take sport in the NYT's and Time's apparent conundrum over whether they were and are complicit in hiding information that should have gone to the grand jury, I trust incentives such as this fine balanced consideration by EW of the NSA story which emerged yesterday, will help temper NYT's response. Frist can still tack Patriot renewal onto defense bill, so, cheer for Hagel, Sununu, et al., today, but rely on Frist who voted for it to attempt to accomplish unilaterally what his own caucus would not vote in the majority to do about extending an intact Patriot. On the TX exiled senator wiretaps, that would be a burden if somehow that evidence could emerge before the April argument at the Supreme Court in the TX redistrict mid-decenium, in that one-person, one-vote partisan gerrymander case. On the mysterious Judy matters, perhaps more will become public knowledge if NYT so deems, as the NSA hearings unfold in congress as they are likely to soon.

Just the other day I saw a cinematic reminder of how little has changed over the years---and so of how thorough we must try to be now in cleaning up the mess.

Seems in the movie, set around 1955, there's this file-stealing secretary for The New York Times (wish I could use the logo-type there) who "gets things" for an exceptionally disreputable private eye of her acquaintance. From my memory:

The dyke in Archiving's getting suspicious. My boss hasn't researched a story in years.

The movie, of course, is Angel Heart. But enough about the press---let's all start writing up our own bill of impeachment particulars, shall we? It's a real mind-clearing exercise.

Thanks for detailing Cheney's co-conspiritorial role in Bush's clearly illegal surveillance scheme. You have thereby solved the previously perplexing problem of impeaching Bush only to wind up with Cheney or impeaching Cheney only to wind up with Condi as vice president and 2008 presidential nominee. Now, assuming we can overcome Republican hacking of the electronic voting machines, and get a majority in Congress in 2006, we can oust Bush and Cheney in one impeachment proceeding and get our first woman president -- Nancy Pelosi--at the same time.

People are getting tired of this impeachment stuff, Justina, though the gentlemen and lady may have misestimated the eight-year timeline for getting their agenda enacted and departing office gracefully; if enough evidence is extruded into the public realm, perhaps; EW is certainly helping that from the discovery and strategy perspectives. Often I think EW is STRICT toward the NYT, but if any news entity has the conscience and intelligence to hear EW and correct course, it is NYT. On the voting debacle, you may be informed there is a suit filed in NC to obtain a TRO against the recent NC reversal of its decision not to certify one manufacturer's machine, for insufficient quantities of software consigned to the state for underwriting. That legal realm is a peril, at least in some attorneys' view, in that the federal Independent Test agencies which examine the software apparently rely too much on manufacturer's guarantees and states' hodgepodge purchasing processes to screen out such backdoor weaknesses as, say, using portable handheld device software with known bugs as a module in a voting machine. Check about the third article on the news page at Electronic Frontier for a link to a copy of the petition in NC filed apparently December 8, 2005. Websites discussing that important topic in my experience take a lot of interpretation, as they tend toward the political where perhaps an increment of equanimity would serve better.

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