I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, November 24, 2005

The NYT keeps granting anonymity to spinning Administration officials

Why does The New York Times continue to allow the Bush Administration to publicly defend itself while hiding behind a journalistically indefensible and misleading shield of anonymity?

Controversy exists over the proper standards for determining when granting anonymity to sources is justifiable, but it seems that virtually everyone agrees on two propositions:

(i) Reporters rely too much on anonymous sources, particularly where anonymity serves no important journalistic end; and,

(ii) Anonymity should not be granted to government officials who are disseminating pro-government spin.

In a column published just last week, Times Public Editor Byron Calame lambasted the Times for its excessive and unwarranted use of anonymity, and particularly cited the impropriety of anonymity when it is granted to Government sources who want to defend the Government:

While many sources have long sought anonymity to disparage an opponent or enemy, the current White House can be found praising the president's decision-making anonymously. In a July 6 Times article about the year's first Supreme Court vacancy, "a senior White House official who spoke on condition of anonymity because most staff members are not authorized to speak about the vacancy" said that "at the end of the day, the president is going to decide this based on those principles, not from any pressure from the groups."

"What possible reason related to news can justify running this quote?" Jay Ackroyd of New York asked me in an e-mail message. "It's just spin." It also makes me feel uneasy. Puffery with the protection of anonymity can be used in pursuit of ends as devious as those sought through unattributed negative comments.

Calame, in recommending that reporters be required to explain why they affirmatively "granted" anonymity to their sources, made clear that anonymity is justified only in a narrow range of circumstances:

This would help limit confidential sourcing to the kinds of coverage where it's vital: national security, intelligence, investigative articles and classic whistle-blower projects.

This morning, The Times has an important, apparently exclusive article reporting on the reasons why the Bush Administration, in finally indicting Jose Padilla after 3 years of holding him captive in a military prison, failed to indict him for the two crimes which it publicly cited over and over in support of its claim that Padilla was so dangerous and important: namely, that he was an attempted "dirty bomber" who tried to smuggle and detonate a radiological bomb in the U.S., and that he plotted to blow up apartment buildings which have natural gas pipelines. The Times article is comprised almost exclusively of one quote after the next from anonymous Governmental sources.

In one sense, this article provides an outstanding illustration of the narrow circumstances in which anonymous sources play a critically important journalistic role. The article reveals that the two witnesses who provided the incriminating information about Padilla, including the "dirty bomb" allegation, were subject by the CIA to "harsh interrogation," including the torture practice known as "waterboarding." As a result, the Government did not want to and could not bring charges based on information obtained from these sources, because the "harsh treatment" to which they were subjected made whatever information they provided highly suspect.

These revelations are based upon statements by anonymous "officials" as well as internal CIA reviews (it is unclear if the Times reporters read those reports or were told about them). These anonymous sources enabled the Times to report that these CIA reviews "raised questions about the[] treatment and credibility" of the two Padilla accusers.

It is easy to see why anonymity would be granted here in order to obtain this vitally important information. That the Padilla accusers' statements are unreliable because they were obtained by torture is information which the Administration clearly would not want disseminated but which is of obvious public importance. This is information which would almost certainly remain concealed if the sources could not pass it along anonymously, and it is therefore a perfect journalistic use of anonymous sourcing.

Beyond that revelation, however, the article grants anonymity to what appear to be several Administration officials whose statements have no purpose other than to defend the Justice Department's behavior in the Padilla matter. We thus "learn" from anonymous sources the following pro-Administration spin:

(1) Despite refusing to make any public statements about the accusations not charged in the indictment, the Administration still stands behind the "dirty bomb" and apartment bombing allegations:

The officials spoke a day after Attorney General Alberto R. Gonzales repeatedly refused at to address questions a news conference about why the government had not brought criminal charges related to the most serious accusations. The officials, from several agencies, sought to emphasize that the government was not backing off its initial assertions about the seriousness of Mr. Padilla's actions.

(2) Ample evidence exists to prove Padilla's involvement in terrorist cells:

Officials said they had considered bringing criminal charges against Mr. Padilla in the case and releasing him from military custody as early as last spring, after intercepted communications pointed to his role in the cell. But officials faced time pressures in bringing the criminal case, and when the Florida judge delayed proceedings against the men already charged, the administration decided to hold off charging Mr. Padilla.

(3) There is still reason to fear that Padilla was trying to blow up apartment buildings which use natural gas:

In the interviews on Wednesday, American officials from several agencies said they still regarded those accusations as serious, particularly the one described by Mr. Mohammed. Officials said they were deeply concerned about reports that Mr. Padilla, trained by a Qaeda bomb maker who is at large, might seek to rig an explosive to the natural gas system of an apartment building in New York, officials said.

(4) The Government justifiably didn't indict Padilla for the dirty bomb and natural gas allegations because they were afraid that important classified information would be disclosed at trial:

They said any effort to introduce testimony by Mr. Mohammed and Mr. Zubaydah against Mr. Padilla could have opened the way for defense lawyers to expose details about their detention and interrogation in secret jails that the Central Intelligence Agency has worked hard to keep out of public light.

(5) And, again, the Government still believes Padilla tried to bomb apartment buildings:

A senior American official said, "There has been no reason to doubt that the accusations against Padilla in relation to the bombing plot were genuine."

Transparently, these quotes are being purposely fed to the Times by an Administration which does not want to defend itself publicly. But by being able to advance these defenses anonymously, the Administration can bestow upon them an aura of credibility they don't deserve (since it's often assumed that anonymous sources are whistle-blowers bravely speaking the truth), and worse, it allows the Administration to advance these self-defenses without accountability, since they can't be questioned about them.

There is no journalistic rationale at all for shielding these quotes with the protective armor of anonymity. If the Administration wants to defend its conduct in the Padilla case, it can and should do so on the record. The Times should not grant anonymity to Administration officials who have been so plainly sent not to blow whistles, but to parrot the pro-Administration spin in response to this story.

The rationale provided by the Times for granting this anonymity is nothing short of silly:

"The officials were granted anonymity, saying to be identified by name would subject them to reprisals for addressing questions that Mr. Gonzales had declined to answer."

These anonymous sources are defending the Justice Department by claiming that the evidentiary case against Padilla which was trumpeted all along is still strong, and by denying the central claim of the article, that Padilla was not indicted on these crimes because the primary witnesses for the allegations were tortured. The idea that these officials need to be given protection from their boss, Attorney General Gonzalez, when they are providing uniformly and indisputably pro-Gonazalez spin, is an insult to readers of the article.

It goes without saying that the Times should always endeavor to publish the response of the Administration to any stories it is publishing which reflect poorly on the Administration. But there is absolutely no reason to allow the Administration to provide such a response anonymously, and in doing so, this article simultaneously illustrates the irreplaceable journalistic benefits of anonymity as well as its now-commonplace abuses.

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