by emptywheel
Summary: In this article, I further explore my speculation that James Risen pushed the NYT to reveal more details of the NSA eavesdropping program by refusing to give them a copy of his manuscript until just before the book was published. The articles Risen published after his original December 16 scoop provide additional details of the program, including some technical details that may be some of the ones NYT attempted to withhold.
This post is a follow-up to my earlier post on an NYO article revealing that the NYT hadn't seen Risen's book when they published his December 16 scoop. NYO revealed that it wasn't until December 27 that Risen's editors got a copy of his manuscript to review.
In the earlier post, I suggested that Risen probably used his editors' ignorance of his book's contents to push them to publish the most expansive version of the NSA wiretap story as he could. So long as NYT's editors didn't know how much Risen reported, they would have an incentive to publish more details of the program to ensure they didn't get accused of hiding details of the program once the book came out.
Which is why I think the list of Risen's bylines since the first scoop on December 16 is instructive. It shows that Risen continued to publish details of his NSA wiretap story up until the time the NYT got a copy of his manuscript, including a little-noticed story on December 24 that reveals some technical details of the program. After that point, he has published only one more story. (He almost certainly stopped publishing stories on January 1 because he's on book tour).
Bush Lets U.S. Spy on Callers Without Courts
... By JAMES RISEN and ERIC LICHTBLAU; Barclay ...View free preview
December 16, 2005 - - International - News - 3754 words
SENATORS THWART BUSH BID TO RENEW LAW ON TERRORISM
... LICHTBLAU; James Risen contributed reporting for this article ...View free preview
December 17, 2005 - - National - News - 1913 words
... LICHTBLAU and JAMES RISEN ...View free preview
December 18, 2005 - - National - News - 920 words
... By JAMES RISEN and ERIC LICHTBLAU ...View free preview
December 19, 2005 - - National - News - 1083 words
... By JAMES RISEN and ERIC LICHTBLAU ...View free preview
December 21, 2005 - - National - News - 1008 words
... LICHTBLAU and JAMES RISEN ...View free preview
December 24, 2005 - - National - News - 1288 words
... LICHTBLAU and JAMES RISEN ...View free preview
December 28, 2005 - - National - News - 1611 words
... LICHTBLAU and JAMES RISEN ...View free preview
January 1, 2006 - - National - News - 1154 words
The first article, recall, specifically backed off technical details in deference to the Administration.
Some information that administration officials argued could be useful to terrorists has been omitted.
Perhaps as a result, that first article includes very few technical details, speaking more generally of eavesdropping.
What the agency calls a ''special collection program'' began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.
In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.
Instead of real technical details, the first article provides a political context for the story, including details of the Congresspeople who have received briefs and the legal justification for the program.
Stories Describe the Repercussions
The next stories simply report on the first repercussions of the scoop. On December 17 we read of the Administration's response and the filibuster of the renewal of the PATRIOT Act.
''I went to bed undecided,'' Mr. Schumer said on the Senate floor, ''but today's revelation that the government has listened in on thousands of phone conversations is shocking and has greatly influenced my vote.''
[snip]
Mr. Specter said the report had been ''very, very problemsome, if not devastating,'' to his effort to reauthorize the antiterrorism law.
On December 18 we learn more details on the genesis of the program, including the news that the NSA started the program just after 9/11--and that it was unclear whether Bush authorized this eavesdropping or not.
The National Security Agency first began to conduct warrantless eavesdropping on telephone calls and e-mail messages between the United States and Afghanistan months before President Bush officially authorized a broader version of the agency's special domestic collection program, according to current and former government officials.
The security agency surveillance of telecommunications between the United States and Afghanistan began in the immediate aftermath of the Sept. 11, 2001, attacks on New York and Washington, the officials said.
[snip]
It could not be learned whether Mr. Bush issued a formal written order authorizing the early surveillance of communications between the United States and Afghanistan that was later superseded by the broader order.
The following article, on December 19, is basically coverage of the Administration's Sunday morning talk show response, with refutation of Condi's claim that the Administration had to bypass FISA in order to move quickly on terror investigation.
Risen Publishes Technical Details
Finally, on December 21, Risen and Lichtblau reveal some really troubling news--that the NSA doesn't have the technical ability to avoid all US to US communications.
National security and telecommunications experts said that even if the N.S.A. seeks to adhere closely to the rules that Mr. Bush has set, the logistics of the program may make it difficult to ensure that the rules are being followed.
With roaming cellphones, internationally routed e-mail, and voice-over Internet technology, ''it's often tough to find out where a call started and ended,'' said Robert Morris, a former senior scientist at the N.S.A. who is retired. ''The N.S.A. is good at it, but it's difficult even for them. Where a call actually came from is often a mystery.''
This doesn't seem to be new reporting--just a revelation that Risen didn't release in his first article.
The truly groundbreaking article comes on December 24, in the middle of the Christmas holidays, when most people (including me--this is the first I've looked closely at this article) are distracted by happier things. This article provides a lot more detail about the technical aspects of the program, seemingly the kind of thing the NYT excluded in the December 16 article.
The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.
This article confirms what the blogosphere had speculated--that the program used data mining techniques to examine large amounts of data at least partially collected from within US communications networks.
Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.
This so-called ''pattern analysis'' on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.
This article confirms the data-mining theories, but it also suggests that private telecom companies are directly involved in the data-mining--it's not just the NSA doing the data-mining (which raises real questions about who the shift supervisors are who authorize this data collection ... do they even have security clearances?).
A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.
''All that data is mined with the cooperation of the government and shared with them, and since 9/11, there's been much more active involvement in that area,'' said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.[emphasis mine]
This column even describes one of the technical complaints the FISA court raised about the program--that NSA was eavesdropping on foreign calls that were routed through American telecommunications switches. It appears the concern revolves around interpretation of what non-US communication is--if foreign calls are routed through the US, are they still exempt from FISA? Because if they are, it means the NSA can go after a great deal of data on American switches, ostensibly in search of foreign calls routed through the US, thereby getting access to American calls at the same time.
One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic ''switches,'' according to officials familiar with the matter.
''There was a lot of discussion about the switches'' in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. ''You're talking about access to such a vast amount of communications, and the question was, How do you minimize something that's on a switch that's carrying such large volumes of traffic? The court was very, very concerned about that.''
This December 24 appears to be Risen's real scoop. He seems to have convinced the NYT to publish some of the technical details Keller and Pinch had withheld from the first December 16 story. Sure, they buried it in the middle of a holiday weekend. But Risen got it out there, before handing over his manuscript.
NYT Editors Get the Manuscript--the Scoops Wind Down
By December 28 (effectively the first day after they'd have received the manuscript), the scoop is winding down; this article only reports on the repercussions of the revelation, with one quote that appears to come from one of Risen's sources on the story:
But some Justice Department prosecutors, speaking on condition of anonymity because the program remains classified, said they were concerned that the agency's wiretaps without warrants could create problems for the department in terrorism prosecutions both past and future.
''If I'm a defense attorney,'' one prosecutor said, ''the first thing I'm going to say in court is, 'This was an illegal wiretap.' ''
Then finally, in his last by-lined article before departing for his book tour, Risen publishes the scoop that Comey objected to some aspects of this program. A very important scoop--but no more of the technical details the Administration was trying to obscure.
Holiday Document Dump or Sustained Scoop?
Now, ordinarily, I would say that this publication schedule is typical of any newspaper's attempt to draw out a huge scoop. But consider the timing. The first story appeared on a Friday near the beginning of the holiday season (although it did appear at precisely the right time to give the Senate reason to filibuster the PATRIOT renewal). The second story appeared on a Sunday. The third story (which doesn't contain much new information) appeared mid-week. But then real substantive revelations--starting with article five--appear in the middle of a week during which many had vacation. And the biggest revelations appear on December 24, Christmas Eve and a Saturday. Not really a newspaper's optimal use of a scoop. With the exception of the coincidence of the original December 16 story and the PATRIOT debate, the NYT's publication of Risen's scoop was one big Friday document dump, sustained over two weeks.
I have no proof. But it sure seems to me that NYT's editors wanted to publish as much as Risen would release in his book (thereby avoiding the appearance of stifling the story for the Administration). But they didn't commit to do so right away. In the end, they published some of the most troubling details in such a way that no one would read them.
And every article after the first is behind the NYT paywall. I guess that reinforces your thesis.
Posted by: AlanDownunder | January 20, 2006 at 09:09
EW, I've always appreciated your fine analysis. I remain dubious about the NYT's motive here, which I think is actually quite similar to Risen's: sell papers, sell books. If we happen to further the cause of truth and justice at the same time, so be it.
I don't see anything other than plain old "drip the story" out stuff in this. Have you read Risen's book? What would be interesting is whether there's any new reporting between what was published in December and what appears in the book--whether the information about the teleco's participating in the data mining, for instance--is something that Risen and Lichtblau only found out about after the first part of the story broke.
Risen's book probably went to press in mid to late November. Pinch pretty much knew what was in the book. He didn't need to see the ms. Pinch had been paying Risen for this reporting all along. The Free Press would have been careful in its vetting of the manuscript and would have required Risen to triple check all of his sources. I think that's when he went to Pinch, who then went to the Prez to give them a heads up that they were going to print this. Pinch tells the Prez that publication of the book is inevitable, and so he's going to run the story in the paper beforehand.
Call me crazy, but some times the publisher of the NYT has more power than the president of the USA. And trust me, it would have given Pinch much pleasure to rub Bush's nose in this. Here they are, two boys of equal privilege after all. Hell, Pinch can even claim Southern heritage that goes way back further than Georgie's!
BTW, publication of the story in the NYT gives Risen's book an additional imprimatur, which never hurts sales.
I see that Risen and Lichtblau are back on the case today with their analysis of Gonzo's big document dump of yesterday. . .
Posted by: lemondloulou54 | January 20, 2006 at 09:11
lemond
I think one can very easily make the case this is a drip drip drip. And no, I haven't read Risen's book, but the language he uses in the December 24 story certainly suggests he went back to his sources to gauge how they judged the Presidential response. That is, it contains at least some new reporting.
I think the biggest argument to support my speculation (which is just that--just raising the question) is the December 24 story. It's really the big story. And I can think of only 4 other days of the year in which it would be likely to get less attention (scrap that--since both Christmas and New Years were on Sunday this year, the would both be MUCH larger circulation days).
But there's still the logic of the fight over ownership of this material. Frankly, I think NYT has a great case to make that they own the material (except precendent: when Judy was being subpoenaed, they claimed they didn't own her reporter's notes on a story that they had refused to publish--by the same logic, they also wouldn't own Risen's notes/reporting). And a reason to want to see the manuscript. But beyond learning what was in the book so they could scoop Risen, what logic would they have to fight for ownership of the material? That's the question. I think you raise a lot of important points (and you've mostly convinced me that the NDA is not that big of a story). But I still don't understand how a protracted fight over ownership makes sense with NYT's behavior on the larger story.
Posted by: emptywheel | January 20, 2006 at 09:52
lemond
Two more points.
I acnknowledge that, by printing this story, NYT ended up helping the sales of Risen's book immensely. But my argument is they didn't have a choice. Risen's a distinguished enough writer (particularly on intelligence issues) that his book would have attracted a fair amount of attention anyway (albeit over time). Knowing that, the NYT HAD to publish some of the scoop, or risk being accused of spiking the story altogether.
Also, I agree that NYT can be more powerful than the President. So long as Pinch DOES publish stories like this, he can wield a lot of power.
But I'm speculating on these issues against the background of NYT launching the First Amendment campaign even when they knew Libby was trying to obstruct Judy's testimony. That is, there is already evidence that Pinch was willing to make huge ethical concessions to stay friendly and help out the Administration.
Posted by: emptywheel | January 20, 2006 at 10:00
They had to publish it because otherwise one of their competitors could also have published it. If Risen had indeed submitted the book to Time and the other likely venues, someone other than the Times would have definitely published it. And THAT would have made Pinch look incredibly stupid. But think about it, what publication other than the NYT invests so much in foreign affairs and intelligence? So god bless the Sulzbergers for that.
I'm not so naive as to believe that the NYT isn't an establishment publication. Of course they are. They been around for over 100 years! The Judy stuff is terribly twisted, I agree. I wish that they had blown the whistle on Libby long ago too--before the re-election at least. They admitted that it wasn't the ideal case for the first amendment. But let's direct our anger at the real villains of this story: the Bush administration. Otherwise we might as well just work for Rove himself.
Posted by: lemondloulou54 | January 20, 2006 at 13:36
EW (OT) - i have another post up about wilson and grossman that i thought you might be interested in (it's largely based on your 'Digging through Old Articles')
Posted by: lukery | January 20, 2006 at 18:44
This comment is probably too late to be seen, but the WaPo managed to deal with the New Year falling on a Sunday this year by publishing on the preceding Friday Dana Priest's major article on "the largest CIA covert action program since the height of the Cold War" that includes capturing AQ suspects, maintaining secret prisons abroad, enhanced interrogation techniques, mainatance of the rendition aircraft fleet, & enhanced abilities to mine financial records & eavesdrop "anywhere in the world" -- all "known within the agency by the initials GST."
Posted by: Arcturus | January 23, 2006 at 14:39
EW, Hope you will have a chance to listen to Risen on Terry Gross's "Fresh Air." Here's the link: http://www.npr.org/templates/story/story.php?storyId=5166040
Posted by: lemondloulou54 | January 23, 2006 at 16:47