The Reporter as Dramatic Hero: Some Skepticism

The Reporter as Dramatic Hero: Some Skepticism

The Reporter as Dramatic Hero: Some Skepticism

Slate's blog on legal issues.
March 27 2008 5:21 PM

The Reporter as Dramatic Hero: Some Skepticism

Elsewhere on Slate, Eric Lichtblau describes the "

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" behind The Times' wiretapping story, a drama in which our hero confronts the arrayed forces of the U.S. government, momentarily stumbles, picks himself up, brings the Bush administration to its knees, and learns important things about the world (that government officials sometimes lie, for example).

Many people have wondered why The Times did not report the NSA program in the fall of 2004, when Lichtblau  and his colleague, James Risen, uncovered the story, but instead waited until December 2005.  If the Times did not believe the administration's national security reasons for keeping the program secret, it should have published in 2004.  If it did believe those reasons, then it should not have published in 2005.  The only legitimate explanation for its change of heart would have to be some additional information or event that came to its attention between the fall of 2004 and December 2005.  What was it?

Lichtblau does not really tell us, but several possible explanations emerge from his account.

1.  Reporters had become increasingly distrustful of the Bush administration.  Too many of the things it said turned out to be false.

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2.  The sense of outrage about 9/11 had faded, and reporters were less likely to give the government the benefit of the doubt.

3.  Over the course of those 13 months, the reporters learned that the program was unlawful.

4.  Risen decided (on his own?) to publish the story in a book he was writing.  The Times did not want to be scooped by its own reporter.

The first and second explanations have some psychological plausibility, but, to my mind, they are not persuasive.  Anyone with any knowledge about how the U.S. government has behaved in the past, in normal times and during emergencies, could not possibly believe that government officials are always to be trusted.  Could The Times' reporters really have been so naïve?  More likely, The Times' editors feared a public backlash if The Times expressed excessive skepticism about the government's motives in the wake of 9/11.  Actually, more than three years after 9/11.  That hardly speaks well for The Times, either.

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As for the third explanation, Lichtblau says that he and Risen already knew about internal Justice Department disagreement about the legality of the program in the fall of 2004.  And The Times did not need to use the legal issues as an excuse for publication; it reported the SWIFT monitoring program without claiming that this program was of doubtful legality.  (Ironically, as Jack Goldsmith relates in his book, The Terror Presidency , government lawyers who had expressed doubts about the legality of the program had won the day, and were working to put the program on sounder legal footing, long before the story was published.)

This brings us to the fourth explanation.  Can it really be the case that The Times was forced to publish by a reporter?  One can only feel queasy.  The actual decision to publish was, in effect, made not even by The Times' editors, who might be expected to take a broader view of things, but by a single reporter acting on his own?  Is the drama supposed to be a comedy, or a tragedy?  ("'You sure you know what you're doing?' I asked finally. He shrugged."  Mamet?  Pinter?)

So Lichtblau does not give us an account for the delay that is both plausible and appealing.  Lichtblau  also never mentions whether he and his editors discussed the issues that would seem most obviously pertinent to the question of publication: was the program effective?; would it have been seriously undermined by its disclosure?; was it illegal?; and, what should reporters reasonably believe, given their limited knowledge of what is going on?  Surely his editors thought about these things.  Or was it just a question of PR: will people praise us for our brave reporting or condemn us for undermining national security?  Failing to address these questions in his account (he dismisses the national security worries as "clichés" rather than explaining why he disbelieved them), Lichtblau gives the impression that he is and was indifferent about what the answers might be.  Was it just a matter of skewering the government that had lied to him, national security be damned?

Several questions are raised by this episode.  Suppose The Times or some other newspaper stumbles upon yet another government counterterror program that has been kept secret and whose value depends on secrecy.  One question is a matter of substance: if the value of a counterterror program depends on its being kept secret, under what circumstances should the media nonetheless report it?  As long as the program has any news interest (as it always will)?  Only when the program might, if misused, cause harm to Americans or others (as it almost always will)? Only when there are legal doubts about the program (as there often will be)?  Is the effectiveness of the program relevant, and does the administration have the burden of proving the effectiveness of a program (how, exactly?) in order to persuade a newspaper not to publicize it?  Lichtblau  does not address any of these questions; indeed, he gives the impression that he has never even thought about them.

The second question is the Who Decides question.  Lichtblau  says that the Times was spurred into action when it heard that the Bush administration was thinking of seeking a Pentagon Papers-style injunction against publication.  Of course, the press has expressed longstanding opposition to prior restraints.  However, in an ideal world, wouldn't it be better for a judge, rather than a newspaper editor, to decide whether a national security program should be compromised because of doubts about its value or legality?  How was The Times to know whether the secret program was lawful or not?  And how was it to evaluate its effectiveness and the importance of continued secrecy?  Indeed, a trial was held; the administration made its case.  It's just that The Times was the prosecutor and the judge.  And whatever the editors of The Times might have really thought, their hand was forced by a single reporter acting on his own.