Gray Lady Down (32 page)

An FBI plan to take a census of mosques in individual communities was characterized in
Times
news accounts as “racial profiling.” One report prominently carried a reaction from Ibrahim Hooper, the spokesman of CAIR, who said that the order was obviously a signal to FBI field agents to view every mosque and every Muslim as a terrorist, and that it was “imposing a sense of siege on the Arab-American community.” The insertion of undercover police officers and FBI agents into mosques to conduct surveillance was seen by the
Times
as particularly heinous, even though they were not conducting broad surveillance of all worshippers but only of individuals already being watched as part of terrorism investigations.

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 controversy 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?”