Behind the Eavesdropping Story, a Loud
Silence
NY Times
By BYRON CALAME
Public Editor, NY Times
January 1, 2006
THE New York Times's explanation of its decision to report, after what it
said was a one-year delay, that the National Security Agency is eavesdropping
domestically without court-approved warrants was woefully inadequate. And I
have had unusual difficulty getting a better explanation for readers, despite
the paper's repeated pledges of greater transparency.
For the first time since I became public editor, the executive editor and
the publisher have declined to respond to my requests for information about
news-related decision-making. My queries concerned the timing of the exclusive
Dec. 16 article about President Bush's secret decision in the months after 9/11
to authorize the warrantless eavesdropping on Americans in the United
States.
I e-mailed a list of 28 questions to Bill Keller, the executive editor, on
Dec. 19, three days after the article appeared. He promptly declined to respond
to them. I then sent the same questions to Arthur Sulzberger Jr., the
publisher, who also declined to respond. They held out no hope for a fuller
explanation in the future.
Despite this stonewalling, my objectives today are to assess the flawed
handling of the original explanation of the article's path into print, and to
offer a few thoughts on some factors that could have affected the timing of the
article. My intention is to do so with special care, because my 40-plus years
of newspapering leave me keenly aware that some of the toughest calls an editor
can face are involved here - those related to intelligence gathering,
election-time investigative articles and protection of sources. On these
matters, reasonable disagreements can abound inside the newsroom.
(A word about my reporting for this column: With the top Times people
involved in the final decisions refusing to talk and urging everyone else to
remain silent, it seemed clear to me that chasing various editors and reporters
probably would yield mostly anonymous comments that the ultimate
decision-makers would not confirm or deny. So I decided not to pursue those who
were not involved in the final decision to publish the article - or to refer to
Times insiders quoted anonymously in others' reporting.)
At the outset, it's essential to acknowledge the far-reaching importance of
the eavesdropping article's content to Times readers and to the rest of the
nation. Whatever its path to publication, Mr. Sulzberger and Mr. Keller deserve
credit for its eventual appearance in the face of strong White House pressure
to kill it. And the basic accuracy of the account of the eavesdropping stands
unchallenged - a testament to the talent in the trenches.
But the explanation of the timing and editing of the front-page article by
James Risen and Eric Lichtblau caused major concern for scores of Times
readers. The terse one-paragraph explanation noted that the White House had
asked for the article to be killed. "After meeting with senior administration
officials to hear their concerns, the newspaper delayed publication for a year
to conduct additional reporting," it said. "Some information that
administration officials argued could be useful to terrorists has been
omitted."
If Times editors hoped the brief mention of the one-year delay and the
omitted sensitive information would assure readers that great caution had been
exercised in publishing the article, I think they miscalculated. The mention of
a one-year delay, almost in passing, cried out for a fuller explanation. And
the gaps left by the explanation hardly matched the paper's recent bold
commitments to readers to explain how news decisions are made.
At the very least, The Times should have told readers in the article why it
could not address specific issues. At least some realization of this kicked in
rather quickly after publication. When queried by reporters for other news
media on Dec. 16, Mr. Keller offered two prepared statements that shed some
additional light on the timing and handling of the article.
The longer of Mr. Keller's two prepared statements said the paper initially
held the story based on national security considerations and assurances that
everyone in government believed the expanded eavesdropping was legal. But when
further reporting showed that legal questions loomed larger than The Times
first thought and that a story could be written without certain genuinely
sensitive technical details, he said, the paper decided to publish. (Mr.
Keller's two prepared statements, as well as some thoughtful reader comments,
are posted on the Public Editor's Web Journal.)
Times readers would have benefited if the explanation in the original
article had simply been expanded to include the points Mr. Keller made after
publication. And if the length of that proved too clunky for inclusion in the
article, the explanation could have been published as a separate article near
the main one. Even the sentence he provided me as to why he would not answer my
questions offered some possible insight.
Protection of sources is the most plausible reason I've been able to
identify for The Times's woeful explanation in the article and for the silence
of Mr. Sulzberger and Mr. Keller. I base this on Mr. Keller's response to me:
"There is really no way to have a full discussion of the back story without
talking about when and how we knew what we knew, and we can't do that."
Taken at face value, Mr. Keller seems to be contending that the sourcing for
the eavesdropping article is so intertwined with the decisions about when and
what to publish that a full explanation could risk revealing the sources. I
have no trouble accepting the importance of confidential sourcing concerns
here. The reporters' nearly one dozen confidential sources enabled them to
produce a powerful article that I think served the public interest.
With confidential sourcing under attack and the reporters digging in the
backyards of both intelligence and politics, The Times needs to guard the
sources for the eavesdropping article with extra special care. Telling readers
the time that the reporters got one specific fact, for instance, could turn out
to be a dangling thread of information that the White House or the Justice
Department could tug at until it leads them to the source. Indeed, word came
Friday that the Justice Department has opened an investigation into the
disclosure of classified information about the eavesdropping.
The most obvious and troublesome omission in the explanation was the failure
to address whether The Times knew about the eavesdropping operation before the
Nov. 2, 2004, presidential election. That point was hard to ignore when the
explanation in the article referred rather vaguely to having "delayed
publication for a year." To me, this language means the article was fully
confirmed and ready to publish a year ago - after perhaps weeks of reporting on
the initial tip - and then was delayed.
Mr. Keller dealt directly with the timing of the initial tip in his later
statements. The eavesdropping information "first became known to Times
reporters" a year ago, he said. These two different descriptions of the
article's status in the general vicinity of Election Day last year leave me
puzzled.
For me, however, the most obvious question is still this: If no one at The
Times was aware of the eavesdropping prior to the election, why wouldn't the
paper have been eager to make that clear to readers in the original explanation
and avoid that politically charged issue? The paper's silence leaves me with
uncomfortable doubts.
On the larger question of why the eavesdropping article finally appeared
when it did, a couple of possibilities intrigue me.
One is that Times editors said they discovered there was more concern inside
the government about the eavesdropping than they had initially been told. Mr.
Keller's prepared statements said that "a year ago," officials "assured senior
editors of The Times that a variety of legal checks had been imposed that
satisfied everyone involved that the program raised no legal questions." So the
paper "agreed not to publish at that time" and continued reporting.
But in the months that followed, Mr. Keller said, "we developed a fuller
picture of the concerns and misgivings that had been expressed during the life
of the program" and "it became clear those questions loomed larger within the
government than we had previously understood."
The impact of a new book about intelligence by Mr. Risen on the timing of
the article is difficult to gauge. The book, "State of War: The Secret History
of the CIA and the Bush Administration," was not mentioned in the Dec. 16
article. Mr. Keller asserted in the shorter of his two statements that the
article wasn't timed to the forthcoming book, and that "its origins and
publication are completely independent of Jim's book."
The publication of Mr. Risen's book, with its discussion of the
eavesdropping operation, was scheduled for mid-January - but has now been moved
up to Tuesday. Despite Mr. Keller's distancing of The Times from "State of
War," Mr. Risen's publisher told me on Dec. 21 that the paper's Washington
bureau chief had talked to her twice in the previous 30 days about the
book.
So it seems to me the paper was quite aware that it faced the possibility of
being scooped by its own reporter's book in about four weeks. But the key
question remains: To what extent did the book cause top editors to shrug off
the concerns that had kept them from publishing the eavesdropping article for
months?
A final note: If Mr. Risen's book or anything else of substance should open
any cracks in the stone wall surrounding the handling of the eavesdropping
article, I will have my list of 28 questions (35 now, actually) ready to e-mail
again to Mr. Keller.
The public editor serves as the readers' representative. His opinions and
conclusions are his own. His column appears at least twice monthly in this
section.
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