(NOTE: Please see the Activism Update regarding this alert.)

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.)

This abdication of the press’s responsibility to watchdog the government is startling. As Lawrence Velvel, dean of the Massachusetts School of Law, wrote in CounterPunch (1/7/06):

Why did publication depend upon what people within the government said was the legality or illegality of the program? Why the hell didn’t the Times (confidentially) consult its own lawyers, who could have told it in a New York minute, in 2004, that what was being done by the government was flatly in violation of the law?

In reality, it’s not clear that either reevaluation of the impact on national security or official dissent about the program’s legality were the deciding factors in finally getting the story published; the fact that Risen was about to publish a book (State of War: The Secret History of the CIA and the Bush Administration) that would have scooped the Times while revealing that it had sat on a critical story was apparently a major consideration. “When they realized that it was going to appear in the book anyway, that is when they went ahead and agreed to publish the story,” an unnamed New York Times reporter told the L.A. Times (12/20/05). “That’s not to say that was their entire consideration, but it was a very important one of them.”

So if one of the New York Times‘ reporters had not happened to be working on a book, the administration might well still be conducting its warrantless wiretaps in undisturbed secrecy. In any event, the Bush administration succeeded in getting the piece held until after the 2004 elections, guaranteeing that it would not interfere with Bush’s electoral chances.

There are several other revelations in Risen’s book (see New York Observer, 1/9/06), and it’s unclear how many of them his paper declined to publish. The L.A. Times (1/4/06) did report that a Risen story about a bungled plot to give partially incorrect nuclear information to Iran was spiked “at the request of the White House and former CIA Director George J. Tenet.”

If media oversight of government is at all a significant concern, there are clearly many important questions left unanswered by the Times‘ one-paragraph admission of delay and Keller’s wholly unsatisfying elaboration. Yet the Times seems to have decided that no further explanation will be forthcoming; when Byron Calame, the Times‘ own public editor, submitted a list of questions to Keller and to publisher Arthur Sulzberger, they were rejected en masse (New York Times, 1/1/06). Asked about the delay on the Today show (1/3/06), Risen himself stated, “I’ve agreed with the paper not to discuss the internal deliberations.”

One hopes that Keller and Sulzberger would not want their reporters to accept, as an institution’s response to a controversy, a declaration that it would rather not discuss it. Those who have been rebuffed by the Times–reporters from other news outlets, the paper’s public editor and members of the public themselves–should continue to demand answers that make sense.

ACTION: Please contact New York Times executive editor Bill Keller and let him know that failing to answer questions about the Times‘ year-long suppression of the warrantless wiretapping story is not acceptable. (Note: FAIR would ordinarily direct activists to the Times‘ public editor, whose job it is to respond to the public, but in this case Times executives have prevented the public editor from investigating the matter.)

CONTACT:

Bill Keller

New York Times Executive Editor

212-556-7799

executive-editor@nytimes.com

Please cc the New York Times public editor, Byron Calame (public@nytimes.com) and fair@fair.org.