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.

Saturday, December 17, 2005

The New York Times' complicity in Bush's illegal eavesdropping

The more I think about the revelation yesterday that the Bush Administration eavesdropped on the communications of American citizens in clear and deliberate violation of the Foreign Intelligence Security Act -- based on its expressly stated view that the President is not bound by the law in times of even undeclared war because the President is the law -- the more I think this will be the most lingering and significant story of the Bush Administration, and perhaps its undoing. It almost has to be, for the reasons I set forth in the post below.

But almost as staggering is the fact that The New York Times knew about these illegal acts on the part of the Administration for a full year and kept its mouth shut until yesterday because the Administration asked it to. There is absolutely no justification at all for the Times covering up these illegal acts on the part of the Government for a full year.

It is not, of course, uncommon for newspapers to learn about government secrets but refrain from publishing those secrets where their disclosure would: (a) serve no journalistic purpose and promote no public pood and (b) endanger national security. If, for instance, a newspaper learns about imminent troop movements in a time of war, almost every newspaper would refrain from publishing that information, as it should, because there is no value in publishing it and its dislcosure would endanger American soldiers.

But neither of those circumstances which justify concealment of information by a newspaper -- namely, the lack of a legitimate public interest or harm to national security -- even arguably applies here.

The significance of this story is not that the Bush Administration was eavesdropping on the communications of suspected terrorists -- of course it was doing that. The huge story is that it was doing so illegally by failing to first obtain judicial approval and/or complying with FISA procedures for when a warrant is unnecessary. And, worse, the Bush Administration engaged in these illegal acts not accidentally, but based on its extraordinary and plainly tyrannical view that it is not bound by Congressional restrictions when it acts with regard to the nation's national security.

It is not even theoretically possible that disclosure of the illegal nature of the eavesdropping could endanger national security such that the Times was warranted in helping the Administration to conceal this patent law- breaking. Everyone, presumably including terrorists, assumed the Administration has been eavesdropping on conversations of those whom it suspects of engaging in terrorism.

That the Government eavesdrop is not news because the Government is permitted to eavesdrop provided that it complies with the provisions of FISA. Just like the Government is not permitted to come to your house and break down your door and search through your house unless it has a warrant from a court allowing it to do so, so, too, is the Government barred from eavesdropping on such conversations unless it first obtains judicial approval or complies with FISA provisions for those circumstances in which it need not do so.

The Times would never publish a story simply reporting that the Government has been eavesdropping on suspected terrorists because to do so is simply to state the obvious. The newsworthy component of the story here is not that the Government was doing these things, but that it was doing them illegally and in violation of FISA because it believes it has the right to do so. What possible justification exists for the Times to sit on that story for a year, allowing the Government to deliberately engage in illegal behavior against American citizens while the Times says nothing?

Once the Times finally re-discovered its journalistic purpose and published this story yesterday, they apparently realized that they never had any excuse for waiting a year to do so. In response to inquiries from Salon's Tim Grieve as to why it finally published this story, the Times issued a statement from Executive Editor Bill Keller which said this:

"Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well known.

The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the N.S.A. has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority -- not the need for a robust anti-terror intelligence operation -- that prompted debate within the government, and that is the subject of the article."

No kidding. As a matter of basic logic, there was never a national security threat from disclosing this information because what is being disclosed is not that the Government is engaging in certain intelligence-gathering but that it is breaking the law to do so. Thus, the only "threat" arising from disclosure of this information would be to the political and legal interests of the criminals in the Administration breaking this law knowingly and deliberately. Notwithstanding the story sold by the Administration to the ever gullible Times, no conceivable threat to American national security could exist from disclosure.

Marvel at how easily our press is manipulated and intimidated by a Government invoking scary phrases like "damage to national security" in order to force the media to keep its mouth shut when it uncovers evidence of serious criminality on the part of our highest government officials. That we have an Executive Branch which actually claims that it is entitled to wield unchecked power is disturbing enough. That we have a media -- which was intended to be the Fourth Estate protecting us from exactly these sorts of Government excesses -- that is too stupid, lazy, and/or compliant to do anything about it, even when it finds out about it, makes it all that much worse. Much, much worse.

The complicity of the Times in the Administration's deliberately and proudly illegal behavior makes the Jayson Blair and Judy Miller fiascos look like child's play in the ever-growing pantheon of journalistic disgraces.

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