After the Tall Timber

by Renata Adler

  “The Independent Counsel’s mission,” he wrote, “was to get to the bottom of the morass.” No, it wasn’t. What morass? Then came this formulation:

  Kenneth Starr and his top deputies were not instinctive politicians, and they became caught up in a political war for which they were woefully unprepared and ill-suited. The White House and its allies relentlessly attacked the Independent Counsel for what they thought were both illegal and unprincipled tactics, like intimidating witnesses and leaking to the press. Mr. Starr has been vindicated in the courts in nearly every instance, and he and his allies were maligned to a degree that will someday be seen as grossly unfair.

  One’s heart of course goes out to these people incarcerating Susan McDougal; illegally detaining and threatening Monica Lewinsky; threatening a witness who refused to lie for them, by implying that her adoption of a small child was illegal; misleading the courts, the grand jury, the press, the witnesses about their actions. Persecuted victims, these prosecutors—“caught up,” “woefully unprepared,” “relentlessly attacked,” “maligned.”

  The investigation unfolded with inexorable logic that made sense at every turn, yet lost all sight of the public purpose it was meant to serve. Mr. Starr’s failure was not one of logic or law but of simple common sense.

  Quite apart from whatever he means by “public purpose,” what could Mr. Stewart possibly mean by “common sense”?

  From early on, it should have been apparent that a criminal case could never be made against the Clintons. Who would testify against them?

  Who indeed? Countless people, as the Times checkers, if it had any, might have told him—alleging rape, murder, threats, blackmail, drug abuse, bribery, and abductions of pet cats.

  “The investigation does not clear the Clintons in all respects,” Mr. Stewart wrote, as though clearing people, especially in all respects, were the purpose of prosecutions. “The Independent Counsel law is already a casualty of Whitewater and its excesses.” What? What can this possibly mean? What “it,” for example, precedes “its excesses”? Whitewater’s excesses?

  But as long as a culture of mutual political destruction reigns in Washington, the need for some independent resolution of charges against top officials, especially the President, will not go away. [A reigning culture of mutual destruction evidently needs another Special Prosecutor, to make charges go away.] After all, we did get something for our nearly $60 million. The charges against the Clintons were credibly resolved.

  An extraordinary piece, certainly. Four days later, on Tuesday, September 26, 2000, the Times ran its long-awaited assessment, “From the Editors.” It was entitled “The Times and Wen Ho Lee.”

  Certainly, the paper had never before published anything like this assessment. A break with tradition, however, is not an apology. What the Times did was to apportion blame elsewhere, endorse its own work, and cast itself as essentially a victim, having “attracted criticism” from three categories of persons: “competing journalists,” “media critics,” and “defenders of Dr. Lee.” Though there may, in hindsight, have been “flaws”—for example, a few other lines of investigation the Times might have pursued, “to humanize” Dr. Lee—the editors seemed basically to think they had produced what Mr. Stewart, in his op-ed piece, might have characterized as “a model of investigative reporting.” Other journalists interpreted this piece one way and another, but to a reader of ordinary intelligence and understanding there was no contrition in it. That evidently left the Times, however, with a variant of what might be called the underlying corrections problem: the lepidopterist and his trust. “Accusations leveled at this newspaper,” the editors wrote, “may have left many readers with questions about our coverage. That confusion—and the stakes involved, a man’s liberty and reputation—convince us that a public accounting is warranted.” The readers’ “confusion” is the issue. The “stakes,” in dashes, are an afterthought.

  “On the whole,” the public accounting said, “we remain proud of work that brought into the open a major national security problem. Our review found careful reporting that included extensive cross-checking and vetting of multiple sources, despite enormous obstacles of official secrecy and government efforts to identify the Times’s sources.”

  And right there is the nub of it, one nub of it anyway: the “efforts to identify the Times’s sources.” Because in this case, the sources were precisely governmental—the FBI, for example, in its attempt to intimidate Wen Ho Lee. The rest of the piece, with a few unconvincing afterthoughts about what the paper might have done differently, is self-serving and even overtly deceptive. “The Times stories —echoed and often oversimplified by politicians and other news organizations—touched off a fierce public debate”; “Now the Times neither imagined the security breach nor initiated the prosecution of Wen Ho Lee”; “That concern had previously been reported in the Wall Street Journal, but without the details provided by the Times in a painstaking narrative”; “Nothing in this experience undermines our faith in any of our reporters, who remained persistent and fair-minded in their news-gathering in the face of some fierce attacks.”

  And there it is again: Wen Ho Lee in jail, alone, shackled, without bail—and yet it is the Times that is subject to “accusations,” Times reporters who were subjected to those “fierce attacks.”

  The editors did express a reservation about their “tone.” “In place of a tone of journalistic detachment,” they wrote, they had perhaps echoed the alarmism of their sources. Anyone who has read the Times in recent years—let alone been a subject of its pieces—knows that “a tone of journalistic detachment” in the paper is almost entirely a thing of the past. What is so remarkable, however, is not only how completely the Times identifies with the prosecution, but also how clearly the inversion of hunter and prey has taken hold. The injustice, the editors clearly feel, has been done not to Dr. Lee (although they say at one point that they may not have given him, imagine, “the full benefit of the doubt”) but to the reporters, and the editors, and the institution itself.

  Two days later, the editorial section checked in, with “An Overview: The Wen Ho Lee Case.” Some of it, oddly enough, was another attack on Wen Ho Lee, whose activities it described as “suspicious and ultimately illegal,” “beyond reasonable dispute.” It described the director of the FBI, Louis Freeh, and Attorney General Janet Reno as being under “sharp attack.” The editorial was not free of self-justification; it was not open about its own contribution to the damage; it did seem concerned with “racial profiling”—a frequent preoccupation of the editorial page, in any case. The oddest sentences were these: “Moreover, transfer of technology to China and nuclear weapons security had been constant government concerns throughout this period. To withhold this information from readers is an unthinkable violation of the fundamental contract between a newspaper and its audience.” It had previously used a similar construction, for the prosecutors: “For the FBI . . . . not to react to Dr. Lee’s [conduct] would have been a dereliction of duty.” But the question was not whether the FBI should react (or not) but how, within our system, legally, ethically, constitutionally, to do so. And no one was asking the Times to “withhold information” about “government concerns,” least of all regarding alleged “transfer of technology to China” or “nuclear weapons security.” If the Times were asked to do anything in this matter, it might be to refrain from passing on, and repeating, and scolding, and generally presenting as “investigative reporting” what were in fact malign and exceedingly improper allegations, by “anonymous sources” with prosecutorial agendas, against virtually defenseless individuals.

  There was—perhaps this goes without saying—no apology whatever to Wen Ho Lee. “The unthinkable violation of the fundamental contract between a newspaper and its audience” did not, obviously, extend to him. Lelyveld, too, had referred to a Corrections policy “to make our contract with readers more enforceable.” What “contract”? To rectify malignant misspelling of names? This concern, too, wa
s not with facts, or substance, or subject, but to sustain, without earning or reciprocating, the trust of “readers.” The basis of “trust” was evidently quite tenuous. What had increased, perhaps in its stead, was this sense of being misunderstood, unfairly maligned, along with those other victims: FBI agents, informers, and all manner of prosecutors. No sympathy, no apology, certainly, for the man whom many, including in the end the judge, considered a victim—not least a victim of the Times.

  That Times editors are by no means incapable of apology became clear on September 28, 2000, the same day as the editorial Overview. On that day, Bill Keller, the managing editor of the Times, posted a “Memorandum to the Staff,” which he sent as well to “media critics,” and which he said all staff members were “free to share outside the paper.”

  It was an apology, and it was abject. “When we published our appraisal of our Wen Ho Lee coverage,” it said, “we anticipated that some people would misread it, and we figured that misreading was beyond our control. But one misreading is so agonizing to me that it requires a follow-up.”

  “Through most of its many drafts,” Keller continued, the message had contained the words “of us” in a place where any reader of ordinary intelligence and understanding, one would have thought, would have known what was meant, since the words “to us” appear later in the same sentence. “Somewhere in the multiple scrubbings of this document,” however,

  the words “of us” got lost. And that has led some people on the staff to a notion that never occurred to me—that the note meant to single out Steve Engelberg, who managed this coverage so masterfully, as the scapegoat for the shortcomings we acknowledged.

  My reaction the first time I heard this theory was to laugh it off as preposterous. Joe and I tried to make clear in meetings with staff . . . that the paragraph referred to ourselves . . . . In the very specific sense that we laid our hands on these articles, and we overlooked some opportunities in our own direction of the coverage. We went to some lengths to assure that no one would take our message as a repudiation of our reporters, but I’m heartsick to discover that we failed to make the same clear point about one of the finest editors I know. Let the record show that we stand behind Steve and the other editors who played roles in developing this coverage. Coverage, as the message to readers said, of which we remain proud.

  Bureaucracy at its purest. Reporters, editors, “masterfully directed” coverage, at worst some “opportunities” “overlooked.” The buck stops nowhere. “We remain proud” of the coverage in question, only “agonized” and “heartsick” at having been understood to fail to exonerate a member of this staff. The only man characterized as “the scapegoat” in the whole matter is—this is hardly worth remarking—one of the directors of the coverage, some might say the hounding, of Wen Ho Lee.

  Something is obviously wrong here. Howell Raines, the editor of the editorial page (and the writer of the Overview) was, like Joe Lelyveld, a distinguished reporter. Editing and reporting are, of course, by no means the same. But one difficulty, perhaps with Keller as well, is that in an editing hierarchy, unqualified loyalty to staff, along with many other manifestations of the wish to be liked, can become a failing—intellectual, professional, moral. It may be that the editors’ wish for popularity with the staff has caused the perceptible and perhaps irreversible decline in the paper. There is, I think, something more profoundly wrong—not just the contrast between its utter solidarity, its self-regard, its sense of victimization and tender sympathy with its own, and its unconsciousness of its own weight as an institution, in the stories it claims to cover. Something else, perhaps more important, two developments actually—the emergence of the print reporter as celebrity and the proliferation of the anonymous source. There is an indication of where this has led us even in the Times editors’ own listing, among the “enormous obstacles” its reporters faced, of “government efforts to identify the Times’s sources.” The “sources” in question were, of course, precisely governmental. The Times should never have relied upon them, not just because they were, as they turned out to be, false, but because they were prosecutorial—and they were turning the Times into their instrument.

  In an earlier day, the Times would have had a safeguard against its own misreporting, including its “accounting” and its Overview of its coverage of the case of Wen Ho Lee. The paper used to publish in its pages long, unedited transcripts of important documents. The transcript of the FBI’s interrogation of Dr. Lee—on March 7, 1999, the day after the first of the Times articles appeared—exists. It runs to thirty-seven pages. Three agents have summoned Dr. Lee to their offices in “a cleared building facility.” They have refused him not only the presence of anybody known to him but permission to have lunch. They keep talking ominously of a “package” they have, and telephone calls they have been making about it to Washington. The contents of the package includes yesterday’s New York Times. They allude to it more than fifty times:

  “You read that and it’s on the next page as well, Wen Ho. And let me call Washington real quick while you read that.”

  “The important part is that, uh, basically that is indicating that there is a person at the laboratory that’s committed espionage and that points to you.”

  “You, you read it. It’s not good, Wen Ho.”

  “You know, this is, this is a big problem, but uh-mm, I think you need to read this article. Take a couple of minutes and, and read this article because there’s some things that have been raised by Washington that we’ve got to get resolved.”

  And they resume:

  “It might not even be a classified issue . . . . but Washington right now is under the impression that you’re a spy. And this newspaper article is, is doing everything except for coming out with your name . . . everything points to you. People in the community and people at the laboratory tomorrow are going to know. That this article is referring to you . . . .”

  The agents tell him he is going to be fired (he is fired two days later), that his wages will be garnished, that he will lose his retirement, his clearance, his chance for other employment, his friends, his freedom. The only thing they mention more frequently than the article in the Times is his polygraph, and every mention of it is something they know to be false: that he “failed” it. They tell him this lie more than thirty times. Sometimes they mention it in conjunction with the Times article:

  “You know, Wen Ho, this, it’s bad. I mean look at this newspaper article! I mean, ‘China Stole Secrets for Bombs.’ It all but says your name in here. The polygraph reports all say you’re failing . . . . Pretty soon you’re going to have reporters knocking on your door.”

  Then they get to the Rosenbergs:

  “The Rosenbergs are the only people that never cooperated with the federal government in an espionage case. You know what happened to them? They electrocuted them, Wen Ho.”

  “You know Aldrich Ames? He’s going to rot in jail! . . . He’s going to spend his dying days in jail.”

  “Okay? Do you want to go down in history? Whether you’re professing your innocence like the Rosenbergs to the day they take you to the electric chair? . . .”

  Dr. Lee pleads with them, several times, not to interrupt him when he is trying to answer a question: “You want me, you want to listen two minutes from my explanation?” Not a chance:

  “No, you stop a minute, Wen Ho . . . . Compared to what’s going to happen to you with this newspaper article . . .”

  “The Rosenbergs are dead.”

  “This is what’s going to do you more damage than anything . . . . Do you think the press prints everything that’s true? Do you think that everything that’s in this article is true? . . . The press doesn’t care.”

  Now, it may be that the editors of the Times do not find this newsworthy, or that they believe their readers would have no interest in the fact that the FBI conducts its interrogations in this way. The Times might also, fairly, claim that it has no responsibility for the uses to which its front-p
age articles may be put, by the FBI or any other agency of government. Except for this. In both the editorial Overview and the “Note from the Editors,” as in Mr. Stewart’s op-ed piece, the Times’s sympathies are clearly with the forces of prosecution and the FBI. “Dr. Lee had already taken a lie detector test,” the editors write, for example, in their assessment, and “FBI investigators believed that it showed deception when he was asked whether he had leaked secrets.”

  In the days when the Times still published transcripts, the reader could have judged for himself. Nothing could be clearer than that the FBI investigators believed nothing of the kind. As they knew, Dr. Lee had, on the contrary, passed his polygraph—which is why, in his interrogation, they try so obsessively to convince him that he failed it. Even the editorial Overview, shorter and perhaps for that reason less misleading, shows where the Times’s sense of who is victimized resides. After two paragraphs of describing various activities of Dr. Lee’s as “improper and illegal,” “beyond reasonable dispute,” it describes, of all people, Louis Freeh, the director of the FBI (and Janet Reno, the attorney general) as being “under sharp attack.” Freeh was FBI director when agents of the Bureau, illegally detaining Monica Lewinsky, were conducting “investigations” of the same sort for the Office of the Independent Counsel. Freeh was also advocating, not just in government but directly to the press, more Special Prosecutors for more matters of all kinds.