Saturday, December 17, 2005

What changed?

That's the prevailing question I had after reading yesterday' piece in the New York Times about the NSA's efforts since 2002 in monitoring some international phone calls. One section of the piece took me by surprise:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. 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. (emphasis mine)
If this is such an earth-shattering story now, why wasn't it one a year ago? The Impolitic chalks it up to the corporatization of the mass media:

US newspapers wonder why they're becoming irrelevant? It's because they stopped functioning as news sources and focus on infotainment in an attempt to raise profits. Any one who cares about news, is getting it from sources that still employ the methodology of investigative reporting and the readers that only care about news that amuses already has Fox. That crowd only looks at the pictures anyway. If the US press wants its readers back, it should try giving us something worth reading.

I think she's half right. While I don't think the New York Times qualifies as an administration lapdog -- when did they last actually support Bush's position on a civil liberties/national security issue? -- I do think this is to some degree about influence-peddling.

I have a hard time buying that this is solely about a matter of principle. If yesterday's report is true, not only in the broad strokes that the President acknowledged and defended today, but also in the further implication that this monitoring is a new and gross violation of Americans' civil liberties, then was this not also true a year ago. What was the incentive to delay?

And then it occured to me: this story broke just hours before a closely-divided Senate was due to vote on the renewal of the PATRIOT Act. Shortly thereafter, I noticed that Captain Ed had reached similar conclusions, with an additional rationale that I had not really considered:

It published now for two reasons, one a typical media convention and the other to beat its own reporter to the scoop. With the Patriot Act up for renewal, the current headlines finally provided a political context that would make this story a blockbuster -- not because it describes illegal activity, but because it plays into the fears the Left have of the rise of an Orwellian Big Brother government from the Bush administration. Ironically, this comes less than a month after the same newspapers giving this story red headlines provided breathless coverage to the 9/11 Commission's "report card" on the government's progress on counterterrorism -- which condemned the White House and Congress for not doing enough to protect Americans from attack.

The second impetus to publish came from the upcoming release of James Risen's book, "State of War", due to be released in less than a month. The story would lose its impact and the Times would lose its investment in the development of it if the book came out first. Also, it doesn't hurt to have its reporter on the best-seller list, and the explosive nature of this leak will almost certainly propel the upcoming Risen tome to the top of those lists, at least briefly.

Now, I don't know if I endorse Captain Ed's theory completely, but on the first point this timing does seem to give the story more impetus if the Times thought it was realtively weak to start. Also, it does put a little more pressure on Senators who might have been on the fence before yesterday's PATRIOT Act vote. While I don't believe for a moment that Senator Chuck Schumer was undecided up until the morning of the vote, other senators almost certainly were.

As to the second point, I dismissed it when Drudge noted that a Times reporter on the NSA piece, James Risen, has a book coming out next March on this very topic. But, putting The Impolitic's piece next to Captain Ed's, there may really be something here. (I know -- who knew?)

The Times, as the keeper of all the resources that went into this reporting, had an obvious interest in being the first news outlet to break this NSA story, whatever it may be in the end. With one of the reporters on this piece set to publish a book in the coming months, the question of whether the Times would print it was never one of "if?" but rather one of "when?"

So, when would this article go to print? Of course, when it would make the biggest spash. Passage of the PATRIOT Act renewal in the House was a foregone conclusion, but much more uncertain in the Senate. That yesterday's Times piece included a few bits of meta-reporting compels me to ask:

Is the New York Times descending in to the pits of "infotainment" for the nation's Democrats and other self-identified civil libertarians?

You decide.

In anticipation of the inevitable question, I'm sure someone will ask: But aren't you missing the point? Isn't this a gross violation of our privacy rights? Shouldn't our focus be on the administration instead of smearing the messenger?

My answer: To take the questions in reverse order, I hope the Senate undertakes a thorough investigation of this whole affair, and let the chips fall where they may. As to whether there is a civil rights violation here, I don't know. If this were purely domestic monitoring, I have little doubt that there would be. That said, the international element of this monitoring pushes it into a realm miles away from any expertise I might have, so I can't in good conscience give an informed opinion on that point at this early time. Captain Ed thinks that the lawyers at the Times didn't find anything illegal here; I'm not convinced that their actions necessarily reflect that, but I wouldn't be surprised if they did.

All the same, I'll be keeping an eye on this.

Related posts:
Follow-up on FISA


Blogger Kevin said...

I thought that you were going to accuse the NYTimes of timing the disclosure with the Iraqi elections. I am sure that there are some that think that this bastion of liberal media wanted to take some steam off of the good press the administration would be getting with the pictures of happy voters with purple fingers.

If it is determined that President Bush broke the law in ordering illegal searches, I wonder if there will be any serious discussion in Congress of impeachment.

4:02 PM  
Blogger Bostonian Exile said...

I thought that you were going to accuse the NYTimes of timing the disclosure with the Iraqi elections.

I'm nothing, if not full of surprises. :-)

As to your other point, I have some thoughts that (regrettably) have to wait as I am heading out of the door.

Actually, the impeachment point might make for a good thinkpiece a little later. More soon.

4:12 PM  
Blogger Midwestern Progressive said...


"That said, the international element of this monitoring pushes it into a realm miles away from any expertise I might have, so I can't in good conscience give an informed opinion on that point at this early time."

Do you really think all "monitoring" was of the "international" variety?

As one who stopped trusting Team Bush long ago, I don't. As one who (my guess) still trusts the current administration, I wonder what your opinion is on that matter.

Who knew, when voters checked George Bush's name off on their ballots, that they were really voting for Richard Nixon?

8:00 PM  
Blogger Kathy said...

Funny line, Midwestern: Who knew, when voters checked George Bush's name off on their ballots, that they were really voting for Richard Nixon?

I hate to say it, but they were warned. ;-)

(Sorry, Exile!)

To add to this discussion, I saw Feingold on the news this morning and he said something I wasn't aware of. He said Bush (or any president for that matter) has always had the ability in an emergency situation to authorize a wiretap without a warrant, but the government must then inform the judge (or whoever it is that gives the approval) within 72 hours of the wiretap why it was carried out. Feingold said Bush never went through proper channels and instead thumbed his nose at the system so to speak (my words).

That King George, he makes royals look bad!

1:02 PM  
Blogger Bostonian Exile said...

Do you really think all "monitoring" was of the "international" variety?

I think that all of the monitoring was intended to have been international. If not, I'm sure the NYTimes sources would have had no problems blowing the whistle on that angle. Everything I have read up to yesterday (and I am still getting caught up today) failed to mention instances of monitoring purely domestic communications.

So, did it happen? Maybe. Even if there was no driective to monitor domestic communications, it is possible that some communications were intercepted. Do I find this to be a violation of civil liberties? That's where the issue gets trickier.

First, it seems that we are getting into a largely uncharted area of constituional law, as is to be expected when technology improves. That said, I really don't know. In the absence of further information, I have to say that there are solid arguments on both sides at this point.

On the one hand, we have government infringing on what, on its face, appears to be a reasonable expectation of privacy. Viewed fully on its own, it is cause to take notice.

On the other hand, the Fourth Amendment is nowhere near as clear as the text makes it out to be (sorry, Kevin). After over 200 years of development, though the trend has been towards greater recognition of privacy, there still remain constitutional exceptions to warrant requirements and even instances where expectations of privacy are deemed unreasonable.

I simply don't know at this point how this one falls.

Aside to Kathy: I did not see Feingold this morning, but I read yesterday that he said something similar. It seems he is talking about FISA, which covers domestic monitoring. I'm not sure if he is blurring distinctions here, intentionally or not, and there may or may not be overlap. Again, I really don't know and I certainly won't pretend to be ab expert. And I really can't comment much beyond that; I'm doing a lot of catch-up on this issue to really make sense of it.

1:44 PM  
Anonymous Libby said...

Not to pile on Exile, but what's to think about? It looks clear to me that Bush deliberately violated the laws set up in the 70s to prevent exactly these same Nixonian paranoid abuses of privacy. That tricky Dick also thought the holder of the office was above the law of the land.

Excusing it with finely crafted readings of the law using credibility stretching criteria is a job for his politically appointed cronies like Gonzales and Ashcroft, not for someone trying to make an dispassionate, reasoned and impartial judgement.

If we have to bend the law to fit the conduct, then it doesn't live up to the spirit of the law even if you can find a letter that might preclude legally penalizing them for it.

8:55 PM  
Blogger Bostonian Exile said...

Excusing it with finely crafted readings of the law using credibility stretching criteria is a job for his politically appointed cronies like Gonzales and Ashcroft, not for someone trying to make an dispassionate, reasoned and impartial judgement.

I would caution that the same could be said for expounding on the illegality of an activity without careful consideration, having consulted not the relevant sources of law, but instead one's own impression of what that law should be, glossing over inconvenient aspects, as butressed primarily by like-minded secondary sources.

So, Libby, I have not yet had a chance to look over FISA, but you apparently have. If you are so eager to find illegality here, show me where it is. Walk me through it. If the case is so airtight, show me how the law was violated. And resorting to a "spirit of the law argument" won't fly with me; we don't convict people in this country of violating a law's spirit, but of taking actions in strict conformance with the proscribed act spelled out in the code. I should note, though, that if Bush's actions are ultimately found to be questionable, but not actionable, you won't get the impeachment you want so badly.

Or do people lose simply their expectation of the benefit of full due process once elected on a Republican ticket? I do know how eager you are to nail Tom DeLay, but if he were anyone else he would be "innocent until proven guilty" and you would chastise anyone who suggested otherwise. Is that dispassionate, reasoned, or impartial? Forgive me for saying so, but you don't have much standing to lecture me on those three traits, particularly when those traits facilitate a result with which you sorely disagree.

But, I digress.

What's to think about? Well, for starters I think there is a question as to whether someone has the same reasonable expectation of privacy when engaging in international communications as domestic ones. If they do, then why do we allow customs agents to conduct warrantless searches of letters and packages entering the country every single day, in instances where postal inspectors would need a warrant?

If a warrantless government search of a letter or package entering the country is not an affront to a person's Fourth Amendment rights, then how is a "search" of an e-mail from abroad fundamentally different?

Answer that question to my satisfaction, and I might think about cutting straight to a conclusion.

However, I fear that there are no clear answers here. Not yet, anyway. Even the SCOTUS case you referenced earlier today that dealt with domestic communications was narrowly limited on its own terms.

It's not an airtight case when it is not even fully clear that the above case applies here. It may well apply, but it is far from certain that the framework the justices used would be fully workable in this realm.

10:29 PM  
Anonymous Beard said...

You ask, "Why now?", and point to the PATRIOT act. My question is why the NYTimes sat on this story through the 2004 Presidential election, when it might have made a major difference in our lives today.

I think they helped give that election to Bush, and now have to do something to save some shred of the illusion of independence.

3:02 PM  

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