The New York Times and the Justice Department are under fire for bowing to the National Security Agency and either hiding (the Times) or misinforming (DOJ) the public about crucial pieces of the NSA’s secret spying programs.
An episode of PBS Frontline focuses on the 2004 decision by New York Times editor Bill Keller to kill a story on the NSA in the run-up to that year’s presidential election. The two-part program is called 'United States of Secrets,' and reveals “the dramatic inside story of the U.S. government’s massive and controversial secret surveillance program—and the lengths they went to trying to keep it hidden from the public.”
The report looks back at what the NSA called 'The Program' - the NSA’s decision to spy on Americans’ electronic interactions by spying on telephones, internet communications, metadata from emails, and almost all forms of electronic communications - all without warrants. Scandal broke out when the secretive agency’s spying techniques were revealed to the world - but not by Edward Snowden in the summer of 2013. The NSA first landed in hot water nearly eight years before the government whistleblower began leaking documents.
On Dec 16, 2005, New York Times reporters James Risen and Eric Lichtblau broke the news to the world of President George W. Bush’s 2002 presidential order authorizing the NSA’s use of The Program. Their source was Department of Justice attorney Thomas Tamm, who questioned its legality from the start, PRI reported in an episode of 'The World.' But Bill Keller, the New York Times editor working with Risen and Lichtblau, decided to run the story past top White House officials to get the government’s side of the issue.
According to Frontline’s Michael Kirk, the government used three arguments to convince the Times not to run the story, including: “It is completely legal; it is a vulnerable secret that, if you reveal it, hundreds of thousands of Americans may die in the next attack; and it is working,” Kirk told The World. So the paper delayed the story from when Tamm first talked to the Times reporters in the summer of 2004 until after the presidential election - 18 months after first contact.
Just half a month after the first of Risen’s NSA stories hit the pages of the Times, reports began to surface of the delay in publication. “The administration first learned that The New York Times had obtained information about the secret eavesdropping program more than a year ago and expressed concern to editors that its disclosure could jeopardize terrorism investigations," one of its own articles stated on December 31, 2005. “The newspaper withheld the article at the time, and the government did not open a leak investigation at that time, presumably because such an inquiry might itself disclose the program.”
But readers cried foul. In an April 2006 website feature, Eric Sullivan asked Keller, “I’d like to know why you sat on the N.S.A. story. You probably changed the course of an election and likely history to come.”
Keller responded, “Whether publishing earlier would have influenced the 2004 election is, I think, hard to say. Judging from the public reaction to the N.S.A. eavesdropping reflected in various polls, one could ask whether earlier disclosure might have helped President Bush more than hurt.”
The World notes that we are still dealing with the impacts of the initial Times report. “We’re continuing to debate the merits of domestic spying. Kirk says the government has yet to prove any of the three arguments it gave to Keller,” producer Bradley Campbell wrote. “And he says it causes some to question the program’s validity. But the spying program continues.”
And while the PBS program focuses on criticism that the New York Times delayed exposing the NSA’s secretive spy program, the Times itself is focusing on a letter written by two Democratic senators criticizing the Obama administration for not being forthright about statements the Justice Department made to the Supreme Court regarding the agency’s warrantless surveillance.
Sens. Mark Udall (D-Colo.) and Ron Wyden (D-Ore.) wrote to Solicitor General Donald B. Verrilli Jr., accusing the executive branch of contributing to a “culture of misinformation” about the program, the Times reports. The letter was in response to a December 2013 letter from the Justice Department defending its conduct in the federal court case Clapper v. Amnesty International, in which Amnesty International and a slew of co-plaintiffs contested a provision of the Foreign Intelligence Surveillance Act of 1978, or FISA, that lets the NSA silently monitor emails and phone calls as long as the target of the surveillance is a non-citizen located abroad.
In the case, which the highest court in the land dismissed in 2013, Solicitor General Verrilli presented a defense of the amendments on behalf of US President Barack Obama, arguing that the plaintiffs lacked standing because they could not prove their communications had been intercepted. Udall and Wyden have been battling the Justice Department in a series of letters dating back to 2012 to reveal more information on the NSA’s ability to spy on Americans under FISA.
“All that Senator Udall and I are asking for is a ballpark estimate of how many Americans have been monitored under this law, and it is disappointing that the Inspectors General cannot provide it,” Wyden told Wired’s Danger Room at the time. “If no one will even estimate how many Americans have had their communications collected under this law then it is all the more important that Congress act to close the ‘back door searches’ loophole, to keep the government from searching for Americans’ phone calls and emails without a warrant.”
Tuesday’s letter was a continuation of the theme. In their letter, they argued that the Justice Department misled the Supreme Court in Clapper v. Amnesty International by telling the court that Americans’ international messages must be to or from a target to be collected without a warrant. In December, the Justice Department had argued that its activity of scanning Americans’ international emails and saving any that merely discussed targets (as opposed to being to or from a target) was classified, which meant it was appropriate not to disclose that activity to the High Court.
“What these letters highlight is the extent to which the government was able to take advantage of the fact that the Supreme Court, as much as the American public, was operating in the dark about the scope of the statute and the way the government was using it,” Jameel Jaffer, an American Civil Liberties Union lawyer who argued the case on behalf of the plaintiffs, said to the Times.