The Gray Lady Sinks Deeper in the Mire

by emptywheel

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.

[snip]

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.

Comments

[William Ockham]

emptywheel,

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).

[wilderwood]

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.

[orionATL]

does this mean

or

are you saying

that judy/libby testimony and

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

say,

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?

[emptywheel]

Orion

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.

[emptypockets]

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.

[emptywheel]

~pockets

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.

[DemFromCT]

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?

[Ardant]

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?

[Mimikatz]

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.

[John Casper]

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.

[mainsailset]

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

[p.lukasiak]

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.

[John Casper]

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.

http://firedoglake.blogspot.com/2005/10/temple-of-dust-bunnies.html

[al-Fubar]

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

[egregious]

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

[emptywheel]

Rick

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

[John Casper]

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

[Praedor Atrebates]

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.

[free patriot]

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

[Mimikatz]

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.

[kim]

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

http://whateveralready.blogspot.com/2005/12/former-columnist-and-muckracker-jack.html

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

[p.lukasiak]

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....

[emptywheel]

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.

[orionATL]

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?

well

(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.

[John Lopresti]

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.

[prostratedragon]

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.

[Justina]

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.

[John Lopresti]

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.