Gray Lady Down

by William McGowan

  In June 2006, Andrea Elliott highlighted a survey conducted for the federal government by the left-leaning Vera Institute of Justice, which contended that Muslims were now more afraid of the police than they were of post-9/11 hate crimes. And when the New York Police Department did a study to determine how young Muslim men get radicalized, released in August 2007, Sewell Chan depicted it in the Times as opening the door to racial profiling and to “the marginalization of and hostility toward the American Muslim community,” as CAIR put it. As the specter of homegrown jihadis began to deepen on the heels of at least ten plots involving American citizens or nationals, Paul Vitello and Kirk Semple of the Times filed a report in late 2009 with the headline “Muslims Say FBI Tactics Sow Anger and Fear.”

  The use of material witness warrants in terrorism cases, an effective tool for sorting out suspicious characters, was condemned by the Times. In the spring of 2010, just after the naturalized Pakistani immigrant Faisal Shahzad tried to set off a car bomb in Times Square, the at-large urban critic Ariel Kaminer wrung her hands in worry that the “Big Apple” was becoming the “Big Eyeball” with all the surveillance cameras popping up in New York—cameras that played a significant role in the investigation of the case. There was a piece laced with victimology about the federal no-fly list, which had been strengthened after the Christmas Bomber nearly blew up an airliner heading to Detroit. An editorial denounced as an infringement of free speech the 2010 Supreme Court decision that upheld the “material support” statute barring humanitarian efforts that wind up helping terror groups abroad.

  The Times also unfairly dramatized botched government prosecutions. One such misstep involved Brandon Mayfield, the Oregon lawyer caught up in the 2004 Madrid rail bombings. Another involved the Muslim student in Idaho charged in 2003 with terrorism-related offenses for running a website service that inadvertently had jihadi content posted on it. There was also a terrorism case against three Moroccan men in Detroit that fell apart in 2004 when the Justice Department determined that there had been prosecutorial misconduct. Yet these cases hardly added up to a pattern.

  Meanwhile, the government was breaking up plots to bomb New York City subway stations and to destroy the Brooklyn Bridge. It broke up a plot in New York’s garment district, where al-Qaeda was trying to set up a Kashmiri-owned import-export company as a front to obtain Stinger missiles for use against aircraft at the Newark airport. It successfully prosecuted the Virginia Jihad case and that of the Portland Seven, who were surveilling Jewish schools and synagogues for attack. It got the Lackawanna Six, and also the Yemeni sheik Mohammed Ali Hasan al-Moayad, who was convicted of conspiring to funnel millions of dollars to al-Qaeda and Hamas through his Brooklyn mosque. There was also the “Landmarks Case” of 2004, in which the government stopped a plot to blow up the International Monetary Fund and World Bank headquarters in Washington, the New York Stock Exchange and the Citigroup Center, and the Prudential building in Newark.

  But these successes made little impact on the Times, which concentrated its fire on the government’s three most important antiterror tools: the National Security Agency’s wiretapping of telephone calls and email traffic between the United States and terrorist suspects abroad; the Treasury Department and CIA’s covert surveillance of the Belgium-based SWIFT banking consortium; and the USA Patriot Act, which the paper has insistently portrayed as ineffective and unconstitutional.

  In December 2005, the Times broke the NSA wiretapping story in a front-page account by James Risen and Eric Lichtblau. “Months after the Sept. 11 attacks,” they wrote, “President Bush secretly authorized the National Security Agency to eavesdrop on certain phone calls and email traffic to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.” The sources for the story were “nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program.” They had talked to the Times “because of their concerns about the operation’s legality and oversight.” The report clearly sided with critics of the program, who saw the specter of illegal “domestic spying” or “domestic eavesdropping” on U.S. citizens.

  Reaction against the report in the Times was swift and harsh. The president called its publication a “shameful act” that amounted to “helping the enemy.” The New York Post asked, “Has The New York Times declared itself to be on the front line in the war against the War on Terror?” The Department of Justice opened a criminal inquiry, hinting that it might subpoena the reporters to determine the source of this highly classified leak.

  Self-righteously responding to the furor, Bill Keller, the executive editor, told Murray Waas of the National Journal, “Some officials in this administration, and their more vociferous cheer-leaders, seem to have a special animus towards reporters doing their jobs.... I don’t know how far action will follow rhetoric, but some days it sounds like the administration is declaring war at home on the values they profess to be promoting abroad.”

  The White House had asked the Times not to publish the article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. Risen and Lichtblau reported this, but not the fact that President Bush had summoned Keller and Sulzberger to a meeting in the Oval Office earlier that month to deliver the request and tell them, according to Keller, “You’ll have blood on your hands” if there was another terror attack. Risen and Lichtblau wrote that after meeting with senior administration officials to hear their concerns, “the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.” The paper offered no information about what had changed to warrant publication. Nor did it note that one of its reporters, James Risen, would soon be publishing a book containing most of the information that appeared in the Times report.

  In August 2006, Judge Anna Diggs Taylor ruled against the NSA program, declaring it an unconstitutional expansion of executive power. “There are no hereditary kings in America and no powers not created by the Constitution,” she wrote in her ruling. The Times editorial board was ecstatic, claiming that the ruling “eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.” The judge, the editorial said, did what 535 members of Congress could not do: “reassert the rule of law over a lawless administration.”

  Yet this editorial was itself eviscerated the next day—by the paper’s own legal reporter and analyst, Adam Liptak. Under the headline “Experts Fault Reasoning in Surveillance Decision,” he explained that “Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric.” According to Liptak’s legal sources, the opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.”

  A footnote to the NSA story, showing more dishonesty and partisanship from the Times, came in 2009 when the paper reported on a classified report from the inspectors general of five different federal agencies who reviewed the effectiveness of the NSA surveillance program in terms of the quality of the intelligence it yielded. According to James Risen and Eric Lichtblau—who might have declared a conflict of interest in reporting this follow-up to their own NSA exposé—the wiretapping program had limited value. But the five IG reports had actually declared explicitly that the NSA program was a useful tool, providing information that was previously unavailable, as the senior CIA officials maintained, and serving as a very valuable “early warning system.”

  Six months after their NSA wiretapping story, in June 2006, Risen and Lichtblau sparked co
ntroversy again with another highly classified intelligence exposé. This one described top-secret details of the covert SWIFT banking surveillance program to monitor terrorism-related bank transfers. “Under a secret Bush administration program initiated weeks after the Sept. 11 attacks,” wrote Risen and Lichtblau, “counter-terrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.”

  There was nothing illegal about the program, and it was highly effective. It assisted in the capture of Riduan Isamuddin, an Indonesian who goes by the name Hambali and was considered “the Osama bin Laden of Asia,” and who masterminded the Bali bombings of 2002. The SWIFT program was also instrumental in identifying and convicting Uzair Paracha, who was found guilty of conspiring to launder $200,000 to help al-Qaeda.

  President Bush, along with the Homeland Security chief John Negroponte and the Treasury secretary John Snow, beseeched the Times not to run the story, as Risen and Lichtblau admitted. The government argued that it would undermine one of the most effective instruments of counterterrorism and close down a vital window on the murky doings of international terror. But the Times was undeterred. “We have listened closely to the administration’s arguments for withholding this information, and given them the most serious and respectful consideration,” said Bill Keller. “We remain convinced that the administration’s extraordinary access to this vast repository of international financial data, however carefully targeted use of it may be, is a matter of public interest.”

  The president called the story “disgraceful,” saying there was “no excuse” for a newspaper to publish the nation’s security secrets in time of war. Vice President Cheney called the story “damaging” to national interests. Secretary Snow said the Times had shown “breathtaking arrogance” and had given itself “license to expose any covert activity it learns of.”

  Equally scalding were the Wall Street Journal’s editors, who commented that “Not everything is fit to print.” Millions of Americans, said the Journal, no longer believe that Times editors will make calculations of secrecy versus disclosure “in anything close to good faith.... On issue after issue, it has become clear that the Times believes the U.S. is not really at war, and in any case the Bush Administration lacks the legitimacy to wage it.” Citing Sulzberger’s speech at New Paltz, where he apologized on behalf of his generation for leading the country into a dubious war, the Journal closed, “Forgive us if we conclude that a newspaper led by someone who speaks this way to college seniors has as a major goal not winning the war on terror but obstructing it.”

  Stung by accusations of bad judgment and even of offering aid and comfort to the enemy, the Times issued defenses and explanations through a special “letter to readers,” an editorial, an ombudsman’s report, a string of efforts by the columnists Frank Rich, Paul Krugman and Nicholas Kristof, and an unusual op-ed co-authored by Bill Keller and the Los Angeles Times editor Dean Baquet. Keller also took the unusual step of making carefully managed appearances on Charlie Rose, Face the Nation and PBS NewsHour. As one watchdog website said, it was “all hands on deck” to help a listing ship.

  On PBS News Hour, Keller tried to produce a high-minded summary of the paper’s justification for giving away government secrets, by summoning the Founding Fathers’ vision of “a system whereby ordinary citizens and editors, amateurs, were entitled, under the basic law of the country, to second-guess the leadership of the country.” In his open letter to readers, Keller delivered another little lecture on constitutional history: “The people who invented this country saw an aggressive, independent press as a protective measure against the abuse of power in a democracy, and an essential ingredient for self-government. They rejected the idea that it is wise, or patriotic, to always take the President at his word, or to surrender to the government important decisions about what to publish.”

  As public pressure mounted, however, these grand pronouncements were accompanied by a considerable amount of backing and filling. Although the original story used the word “secret” eight times, including in the headline, Keller now said the program was not a secret. He was echoing Eric Lichtblau, who on CNN tried to justify the paper by citing a USA Today front-page story that ran four days before the Times exposé and said that “terrorists know their money is being traced.” At some points, Keller was reduced to playground logic. If drawing attention to the SWIFT program was “dangerous and unpatriotic,” he mused, why were conservative bloggers and pundits “drawing so much attention to the story themselves by yelling about it on the airwaves and the Internet?”

  The Times’ most egregious attack on the tools used to fight terrorism came in its reporting on the USA Patriot Act, especially its campaign against renewal of the act in 2004. Signed into law in October 2001, the Patriot Act’s most important provision was bring down “the Wall” that had prevented domestic law enforcement and intelligence agencies from communicating with each other. The act also enhanced the Treasury Department’s ability to disrupt terrorist financing networks, and modestly increased the attorney general’s power to detain and deport suspected terrorist aliens. The Patriot Act was important in cases such as the Lackawanna Six, the Virginia Jihad and the Brooklyn Bridge plot; and it helped in apprehending the murderers of Daniel Pearl. (Since then, it’s been important in almost all other terror investigations and prosecutions.) According to some counterterrorism specialists, had the Patriot Act been in place prior to 9/11, the attacks might have been prevented. The FBI and CIA could have been in contact about the two hijackers who the CIA believed were in the country; the FBI could have looked at the contents of the “twentieth hijacker” Zacarias Moussaoui’s incriminating laptop; and investigators might have discovered that seven of the nineteen hijackers had used public access computers to purchase airline tickets.

  Yet the Times was almost violently opposed to the Patriot Act, preferring to see terror as a law enforcement issue rather than an act of war requiring wartime powers for the government. The editorial board ran almost a dozen attacks on the legislation, including “The War at Home” in April 2003, which claimed that “the Bush administration has slashed away at core constitutional protections in the name of fighting terrorism.” An editorial in August, “An Unpatriotic Act,” declared that “many people, both liberals and conservatives alike, consider [the Patriot Act] a dangerous assault on civil liberties.”

  As the fight for renewal of the Patriot Act was beginning in late 2003, the Washington Post reported that many senators, including Democrats such as Dianne Feinstein, agreed with Attorney General John Ashcroft that it did not assault civil liberties. (Feinstein said she had never seen a single abuse of the act.) The Post quoted Senator Joe Biden as saying that criticism of the act was “ill-informed and overblown.” But the Times, downplaying or ignoring such assessments, published several feature stories giving the impression that gumshoes were lurking in community libraries waiting to uncover what seditious books or websites innocent individuals were reading. In a Times Book Review roundup of eight books connected to how 9/11 affected civil liberties, Ethan Bronner, the Times deputy foreign editor, said, “The message from all these books can be summed up in five simple words: Be worried. Be very worried.”

  The fiercest editorial attack by the Times came right on the eve of the renewal vote in October 2004. Headlined “A Very Bad Deal,” it acknowledged that most Americans would willingly trade minor infringements of civil liberties for well-planned and well-executed operations that would make us safer, but claimed that “instead we got a mounting pile of bungled operations, ranging from the merely inept to the scandalously abusive, and military prisons filled with Afghans, Iraqis and other Muslims who have committed no real offenses.” The editorial asserted that terror investigators had come back “with a motley crew of hapless innocents, and people who had said and done stupid things but were hardly a thr
eat to the nation’s security,” that investigators had acted more like Keystone Kops than intelligence operatives, and that cases like the Lackawanna Six were “thin.” But that case, in fact, had put away a potentially dangerous sleeper cell and led to the assassination of the group’s al-Qaeda-connected recruiter/guide. In July 2004, the Department of Justice issued a report outlining dozens of successful investigations where the Patriot Act played a critical role; the DOJ claimed that it had charged 310 defendants with terrorism-related crimes and that 179 of them had already been convicted. This report had been available to the Times editorial board for three months before it ran “A Very Bad Deal.”

  The Times attacked the Patriot Act partly through ad hominem broadsides at its symbolic figurehead, John Ashcroft. In a column headlined “A Travesty of Justice,” Paul Krugman called Ashcroft “the worst Attorney General ever.” His fellow columnist Frank Rich made a similar gratuitous swipe, calling Ashcroft “The Best Goebbels of Them All.” Wrote Rich, “While FDR once told Americans that we have nothing to fear but fear itself, Mr. Ashcroft is delighted to play the part of fear itself, an assignment in which he lets his imagination run riot.”

  The Times’ ideological and partisan opposition to the Patriot Act drove it into solidarity with the likes of Lynne Stewart, the radical lawyer who passed notes from her client Omar Abdel Rahman, a.k.a. the “Blind Sheik,” to his followers in al-Gamaa al-Islamiyya, the Egyptian terrorist organization that massacred dozens of tourists at Luxor in 1997. When Stewart was convicted of providing support for terrorism, Sabrina Tavernise wrote what amounted to a valentine to her, praising her “legendary compassion.” Tavernise recounted how Larry Davis, who shot six New York police officers in 1986, was acquitted after Stewart painted the entire NYPD as racist. Not reported was Stewart’s legendary belief in revolutionary violence, or the fact that the Washington Post once quoted her as saying, “There is death in history, and it’s not all rosebuds and memorial services. Mao, Fidel, Ho Chi Minh understood this.”