The Scoop That Got Spiked

Times delay on wiretap story leaves questions unanswered

1/11/06

By any standard, the New York Times' story of December 16 was a blockbuster: Reporters James Risen and Eric Lichtblau revealed that following the September 11 attacks, the Bush administration initiated warrantless wiretaps on hundreds of people within the U.S.--including U.S. citizens--even though a federal law, the Foreign Intelligence Surveillance Act of 1978, expressly forbids the government from doing so. This program was legal only if one accepts the administration's contention that the executive branch has essentially unlimited powers during "wartime" (even though Congress has not declared war).

The Times story would be an outstanding example of how the First Amendment works to protect liberty--were it not for the ninth paragraph:

"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."

The reasoning is absurd on its face. As Times executive editor Bill Keller noted in a statement released on December 16 explaining his decision to publish the story, "The fact that the government eavesdrops on those suspected of terrorist connections is well-known." But this was as obvious a year ago as it is today. As for the government's spying being "jeopardized," placing illegal and unconstitutional programs in jeopardy is the whole point of the First Amendment (Extra! Update, 12/05).

But Keller's statement revealed that the Times does not see itself as competent to watch out for illegal government activity. In explaining the delay, Keller stated that the administration had "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." Keller went on to say that "it is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood."

In other words, Keller believes it is the Times' "place" to accept officials' own evaluation of the legality of their behavior. (Note that, to the Times, "everyone involved" does not include the people whose constitutional rights were violated, but only the handful of people inside the government who were aware of the program.)

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