The Gray Lady Hides the Disagreement

by emptywheel

This is kind of creepy. After learning yesterday that the Administration conned the NYT out of publishing details of the domestic wiretap program by telling the NYT that there had been no significant disagreement about the program ...

The first known assertion by administration officials that there had been no serious disagreement within the government about the legality of the N.S.A. program came in talks with New York Times editors in 2004. In an effort to persuade the editors not to disclose the eavesdropping program, senior officials repeatedly cited the lack of dissent as evidence of the program’s lawfulness.

[snip]

Mr. Gonzales’s 2006 testimony went unchallenged publicly until May of this year, when James B. Comey, the former deputy attorney general, described the March 2004 confrontation to the Senate Judiciary Committee.

I thought I'd review what the NYT said about Gonzales' public claim when they reported on his testimony in February 2006. The NYT provided extensive coverage of Gonzales' testimony, providing:

• A Lichtblau/Risen overview of the testimony (with reporting from Scott Shane, one of the authors of yesterday's article)
• An editorial critical of Gonzales' appearance
• A legal review of the issues surrounding wiretapping
• An article painting the Democrats as spineless
• A short article describing the normal (legal) FISA process
• Excerpts from Gonzales' testimony

And in spite of all that attention to the testimony, the NYT didn't mention Gonzales' claim that there was no disagreement about the program--not once.

The Bush Administration presumably first told NYT's managers that there was no disagreement on the program in October 2004, just days before the Presidential election, when we know the NYT spiked the story. It's not clear whether they learned that, indeed, there had been a disagreement about the program when they approved the story in December 2005. One of the precipitating factors behind the story, remember, was the imminent publication of James Risen's book; presumably the NYT wanted to avoid being scooped by their own writer. So it's possible the NYT still believed, when they published the first Risen/Lichtblau story on this, that there was no disagreement about the program.

But that ignorance couldn't have continued. Just days after the original Risen/Lichtblau scoop, the NYT reported the resignation from the FISA court of Judge James Robertson--in protest over the program. And Judge Kollar-Kotelly publicly called for a briefing on the program.

In what is emerging as a burgeoning protest and a potentially serious problem for the Bush administration, one member of the 10-member Foreign Intelligence Surveillance Court has resigned. In addition, the presiding judge of the panel has sought more information from the Justice Department and intelligence agencies about why the government seemingly ignored the court and the federal statutes that require the court's approval for electronic monitoring in national security cases on American soil.

The first sign that some of the judges on the court were angry came on Monday with the resignation of Judge James Robertson of Federal District Court in the District of Columbia, first reported in The Washington Post, as was the demand for more information. He was appointed to a federal judgeship in 1994 by President Bill Clinton. He will keep his seat on the bench, government officials said.

Later, the chief judge on the FISA court, Judge Colleen Kollar-Kotelly, who was appointed to the bench in 1997 by Mr. Clinton, began an effort to arrange a classified briefing for other court members so the administration could explain why it sidestepped the court, the officials said.

So it was almost immediately clear that the FISA judges had reservations about the program.

More importantly, on January 1, 2006, just two weeks after the original article, Lichtblau and Risen provided the first account of the March 10 hospital confrontation.

A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.

The concerns prompted two of President Bush's most senior aides -- Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general -- to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.

The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.

"A top Justice Department official objected" ... "refused to sign on its continued use amid concerns about its legality and oversight" ... "James B. Comey ... had indicated he was unwilling to give his approval to certifying central aspects of the program." That sure makes it clear that there was serious disagreement about the program.

The only way the top managers of the NYT could remain ignorant of the clash between Comey and the Administration would be if they all ignored all the NYT's own coverage of a story that was exposing the NYT  to a great deal of criticism from the Administration. Or, should I say, there is no credible way that Sulzbergers and Kellers of the world can claim they were ignorant, by January 1, 2006, that they had been conned back in 2004.

Yet when Gonzales made the claim again, one month later, the NYT let it go, completely unreported, much less corrected.

Comments

[nolo]

actually -- while i agree with EW's fine
analysis of how terribly late to the party
the paper of record has been -- and that
they could have written more today, about
what they knew, but did not write, then. . .

i actually appreciate that a national
newspaper's editorial board is calling
for alberto gonzales' impeachment, should
paul clement fail to appoint a special
prosecutor (as he, no doubt, will).

so i have this to say, today, about that:

"the new york times'. . . story last
evening -- while printing an
administration-endorsed explanation
for alberto gonzales' dissembling
before congress, last tuesday -- had the
salutory effect, to the discerning eye,
at least, of making plain[er] what many
of us have already come to accept
as true. alberto gonzales is a liar.

and not about his golf handicap, or
whether he two-, or three-putted, on
the fourth green. . .

no, he has lied about cheney's (and bush's)
efforts to snoop on americans in violation
of their contitutionally guaranteed rights.

rights he -- and his office -- had sworn to
protect. the times called for his impeach-
ment, at the end of the above editorial.

personally -- as with cheney -- i am calling
for his indictment. that is what the special
prosecutor ought to do. . ."

great stuff, as ever, EW!

[orionATL]

ah, the ghost of "brill content" hovers, smiling.

it is so rewarding to see the sly, evasive behavior of the nytimes leaders laid out in

such extensive detail.

the "paper of record" is not,

nor has it ever been.

that term is self-serving, self-applied, and historically inaccurate to a degree that should be shameful to sulzberger and family --

but never is.

the ny(twit)times is just a corporate media creature which has demonstrated repeatedly that

its highest goal

is schmoozing,

or playing footsie,

with republican political power.

[Ralph]

I am having trouble understanding what is new here. We've known for awhile that the Times suppressed the story until well after the 2004 elections. That was a crime against the nation because the news, if released prior to the election, might have changed the outcome.

Now we have another revelation in that same vein. Is this new story about additional details which the Times suppressed? If so, what are the key new details that have just emerged?

Sorry to be so thick-headed!

[emptywheel]

Ralph

My focus here is on the ways the NYT should have been intervening in debates about Gonzales' testimony. Had they said, "This is the second time the Admin is using this excuse, but we now consider it false." It would have made it a lot harder for BushCo to sustain Gonzales' claim for over a year until it got to this point.

[scarecrow]

Another thing the NYT does not disclose is how the Administration described to the editors back in 2004 "the program" over which they claimed there was no disagreement. Yet that is precisely the focus on today's debate. Did the Admininstration claim then that the entire "program" was beyond disagreement? Or did they use weasle words then that would support the distinction the Gonzales' defenders are using today? The NYT knows that's a key question, and they know the answer, but they won't answer the question nor even acknowledge that they might know the answer.

[bmaz]

Scarecrow, that was exactly the point of my response yesterday. There isn't that much new here and all the NYT is doing is CYA. They won't answer that question because the answer makes them look lame.

[readerOfTeaLeaves]

I get irritated with the newz media as well, but I'd like to see them put more resources into the 'synthesis' and 'contrast/compare', database-driven content that they've begun to develop in the past 18 months. For a fine example, see how they've compared Bush's "State of the Union": http://www.nytimes.com/ref/washington/20070123_STATEOFUNION.html.

The NYT should something like this with Alberto Gonzales's remarks to Congress.

Congress, the media, and even many in the military and government failed to recognize the inner logic of Bu$hCo, because it's so far outside the normal framework for many Americans that we were punk'd.

Bu$hCo doesn't give a rat's ass about 'traditional American values'; it's about shareholder dividends and international power politics. The logic of Privatization and Market Theology in a globalized economy require secrecy, subverting the military to corporate interests ("I pledge allegiance to the Oil Fields of the Middle East, and the necessary conflagration for which they stand..."), and privatizing public resources like electricity (which started in Bush I, and blew up in Bush II). I'm still getting up to speed on Iran-Contra, but even a cursory view suggests that the neocons and the Bush Family concluded that mercenary armies, ability to spy on one's economic and political competitors, and money-laundering are fundamental to whatever structures they hide behind a patina of wealth, respectability, and flag-waving.

Congress, the US, and the medi now confront a monster that grew because of their own negligence, misplaced duty, misplaced trust, and misplaced goodwill. Let's hope that, unlike the NYT, the Congress will refuse to continue being punk'd by Gonzo and his handlers.

I'm not sure what the full nature and scope of the rogue, globalized Bu$hCo threat really is, but it's not 'American' in any traditional, decent, citizen-legislator sense of the term. Not one bit.

[Ralph]

readerOfTeaLeaves -- Do you really think it's possible to stop the monster now that it has grown so big? I have trouble believing that Democrats won't succumb to the siren song of corporate power, not because I know any arcane details of how that corporate power is sold to politicians -- that's still a mystery to me -- but just by the evidence of the number of Republicans have come to be totally controlled. Can Democrats really be that different?

I'm a lifelong Democrat and it's obvious to me that by and large the Democrats are better, more capable people than (especially) the current crop of Republican zombies. That's not the point. I'm just afraid they too will fall down the rabbit hole.

[windansea]

oops, disagreement was over data mining not eavesdropping

lets go for single digit congressional approval

keep up the good work Marcy