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On Friday I posted a short piece in which I said that (1) Benjamin Wittes, co-director of the Harvard Law School–Brookings Project on Law and Security, has been blogging at his website Lawfare “on the report on the abuses of the National Security Agency just out from the President’s Review Group on Intelligence and Communication Technologies, in terms highly favorable to the super-secretive and media-shy agency”; (2) that The New Republic’s website republishes his posts and others from the Lawfare group blog in a project titled “Security States” that is sponsored by Northrop Grumman, a major NSA contractor; and (3) that Wittes and his colleagues enjoy extraordinary access to the NSA, as suggested by a series of interviews they’ve published on the site with top NSA officials. I drew a connection between all of these things. Then I sent the post to TNR’s editor Franklin Foer and to Wittes, promising to publish their responses. What I learned was that the problem isn’t as bad as I originally described. In fact, it’s worse. Ad Policy

* * *

Here is what Franklin Foer, who is an old friend (I hired him for his first journalism internship) wrote back to me:

We’ve been running pieces from Lawfare for many months—and we’ve been running pieces by Ben and Jack for many years. They are valued contributors, sharp minds, genuine experts, and ideologically unpredictable. (Jeff Rosen, another treasured contributor and our legal affairs editor, has long been one of the most important critics of the surveillance state.) When our collaboration with Lawfare was sponsored by Northrop—which was just the month of October—it was clearly disclosed on each article page.

I spent Monday researching Foer’s claim of full disclosure of Northrop Grumman’s sponsorship. Let’s not bury the lede here: what Foer said does not seem to be true.

An announcement of the new collaboration between TNR and Lawfare on September 30, 2013, at Lawfareblog.com (“Coming Tomorrow: Teaming Up With The New Republic”) stated, “We are calling the project, which is being sponsored by the Northrop Grumman Corp, ‘Security States.’ ” An announcement under Wittes’s byline at NewRepublic.com on October 1 says nothing about any sponsorship, and a third announcement, a press release on the same day at NewRepublic.com, concluded, “This partnership is made possible by Northrop Grumman, a leading global security company.” That is the only mention of Northrop Grumman sponsorship of TNR content I can find on its website—ever. Going through each online page with posts tagged as part of the “Security States” series in October, I find that the sponsorship was not “clearly disclosed on each article page.” As this forlorn little Googlewhack reveals, it was in fact revealed on none of them.

I sought clarification from Foer: Did I misinterpret his response? He wrote back, “Northrop doesn’t advertise with us on our site now. That was a month-long deal that ended.” I took him to be saying, perhaps, that the posts published under the “Security States” tag during the period of sponsorship mentioned the sponsorship, but only while that sponsorship was ongoing. However, using the Internet Wayback Machine, I checked for how a post made on October 17 showed up the next day, on October 18—and could find no indication of sponsorship there, either. I followed up by asking Foer about that, too. He replied, “”Northrop was an advertiser. They were promised nothing, other than prominent placement on Security States pages.”

He had appended to his original response “what I hope would be obvious: Nobody from our staff or Lawfare ever had any contact with this specific advertiser; and advertisers never have any say in what we produce.” That’s fine. I don’t doubt him. But to summarize, there was no way to know the arrangement had ended; so Wittes is off-base for knocking me for not knowing the arrangement had ended. Indeed there seems to have been no way, really, for most of The New Republic’s readers to know it ever began. Trusting New Republic readers consumed prose sponsored by Northrop Grumman, concerning issues in which Northrop Grumman had a direct financial interest, without being aware of the fact. I’ll have more to say about that below—because the stuff about the NSA is only the beginning of the problem. The drones are the bigger issue.

* * *

First, listen to Benjamin Wittes:

My response is that this is really goofy for someone of your very considerable talents—and that it would have been worth checking with someone who knows something this subject before writing it up, rather than after. The Northrup [sic] sponsorship was for one month only—the month of October. Not a dime of the money from that sponsorship has been paid to Jack [Goldsmith, about which below] or anyone else for writing for Lawfare, Lawfare being a tiny non-profit that does not pay its writers. What’s more, our content-sharing arrangement with the New Republic, in any event, has nothing whatsoever to do with the “Inside NSA” podcast series, which developed—as we made very clear on the site—out of dialogues Bobby Chesney has been organizing between the agency and academics. On a more personal note, I might add that our characterization of me as ‘blogging on the report on the abuses of the National Security Agency…in terms highly favorable to the super-secretive and media-shy agency’ is simply indefensible. I have written exactly one post on the subject, and it contains no evaluation on the merits of the review group findings at all, merely the political observation that the report is very awkward for the administration. You got one thing right though. I am, in fact, not a lawyer.

Wittes subsequently wrote me, and wrote a post elaborating further, that Northrop Grumman “had no oversight over content with respect to Security States and was not promised pieces on drones or NSA matters either.”

It’s odd. Soon after my post, Wittes blogged that the Lawfare/TNR partnership no longer had “active sponsorship from Northrop, though I sincerely wish we did and look forward to working with them (or other companies) in the future.” Yes, that’s right: his defense against the accusation of taking money from a defense contractor while producing journalism that specifically impacts that defense contractor was to publicly solicit more money from more defense contractors. Lawfare is published by a nonprofit, the Lawfare Institute. It is read by a few thousand people, among them the most powerful decision-makers in the Washington, DC, firmament. It leans right. It likes drones and the NSA. It is also full of smart analysis, valuable analysis, that nonetheless becomes the less valuable the more doubts persist about the independence of its publishers. So who are its funders? Indeed, why does it need funders? Publishing a blog doesn’t cost a penny.

But Lawfare solicits sponsors nonetheless. And maybe a super-human being would be able to do that without the temptation to self-censor—without refraining from publishing the sort of content that would make that stated priority difficult. But unless you believe Benjamin Wittes is a super-human being, it’s hard take Lawfare seriously as an impartial source of analysis. Writing bad things about the sponsor’s products is bad for business; that’s why serious publications maintain a rigid wall between ad sales and editorial—and don’t try to sell sponsorship in the very pieces in which they defense their editorial independence!

Consider, too, what with Wittes describing his outfit as a tiny nonprofit: these guys are not just some random dudes blogging out their idle thoughts out into the Internet ether. According to a feature in CQ Weekly this past spring, “When the House Judiciary Committee summoned experts in February to testify about the legality of drone strikes on U.S. citizens, all of them came from one blog: Lawfare. And when California Democratic Rep. Adam B. Schiff wanted to draft legislation creating a court to oversee such strikes, he consulted with one of the founders of Lawfare, Jack Goldsmith. It’s a common phone call from Capitol Hill to experts who write for the blog.”

A tiny nonprofit? Sure, why not. But here’s another fascinating detail in the CQ piece: the site gets only 2,000 to 3,000 visits a day, but “[a]mong the top six cities reading Lawfare in 2013 are Washington; Arlington, Va.; and McLean, Va., the latter two the neighborhoods of the Pentagon and the CIA.” (I wonder if traffic of late has increased from Laurel, Maryland, the site of the NSA’s Ford Meade headquarters.) The writers may not get paid. But they certainly earn plenty of political capital from the association—specifically with the national security state’s reigning right-leaning powers that be.

The CQ Weekly piece cites Andrew Prasow, senior counterterrorism counsel at Human Rights Watch, who “criticizes Lawfare for its authors’ frequent defenses of surviving elements of Bush’s anti-terrorism policies.” The joint Lawfare/TNR project also, it’s true, publish great stuff that does not—even left-leaning stuff. For instance, there’s this outstanding five-part series on why corporations should be liable for design flaws in their software that make customers vulnerable to cybersecurity breaches. But (concern-troll alert) good dissenting writers won’t publish stuff there for long if their editors keep squandering credibility by selling themselves to the highest defense-contractor bidder.

For guess what else Security States publishes? A piece, during that golden month underwritten by Northrop Grumman, headlined “Armed Robots: Banning Autonomous Weapons Systems Isn’t the Answer.” In it, authors Matthew Waxman and Kenneth Anderson, two members of the right-wing Hoover Institution Task Force on National Security and Law, argue that armed drones “programmed under certain circumstances to select and fire at some targets entirely on their own” are “not inherently unethical and unlawful, and they can be made to serve the ends of law on the battlefield…through existing normative framework,” and that to “preemptively ban the development and use of autonomous weapons systems” would be “unnecessary and dangerous.”

Now, for all I know, they have a point. (It sounds nuts to me, but hey, I’m not the expert.) And I’m sure these cats are sincere in their belief. But I’d still trust them more if the conclusions weren’t so, um, salubrious to a certain corporate sponsor. For a global ban on drones that deal death via artificial intelligence algorithms would be pretty damned inconvenient for a company racing to complete something called the X-47B, “also known as as the Unmanned Combat Air System Demonstrator (UCAS-D),” according to the breathless prose of the tech site CNet this past month. The X-47B, CNet continues, “has put a gleam in the Pentagon’s eye about someday equipping carrier strike forces with autonomous aircraft.”

That would be very sort of aircraft that Lawfare/TNR says don’t need no stinking regulation.

Northrop is drone central. Ran a Fortune web headline from last week: “How Northrop Grumman Is Winning the Military’s Super-Stealth Drone Race: Northrop Grumman signs yet another major drone contract from the DoD.” And, from NextGov from a few months back: “Northrop Grumman and Carter Aviation Technologies have been hired for a $9 million effort to conceptualize an armed drone that will launch from a small ship to strike as far as 900 nautical miles away.”

Wittes drone-defense central—a leading advocate of drone warfare as “ethical and effective.”

Maybe that’s why Grumman found him worthy of their sponsorship.

In any event, in October, under that sponsorship, we find Wittes criticizing an Amnesty International report on drones.

At this point, let me cop to it. It was wrong of me to write piece titled, “Why Is &lsdquo;The New Republic’ Taking Money From an NSA Contractor to Run Defenses of the NSA?” That was unfair. Much more accurate would have been to write, “Did &lsdquo;The New Republic’ Take Money From a Drone Manufacturer that Wanted It To Run Defenses of Drones?”

The timing was certainly auspicious: last autumn was precisely when Northrop Grumman would want Lawfare’s small but influential band of readers to be thinking warm thoughts about its drone program—especially the ones on congressional staffs. Another of their unmanned planes, the Global Hawk, was slated by the Pentagon for termination in January of 2012. According to an AllGov.com report, “The Air Force determined that Global Hawk cost too much and was too limited in its ability to fly during stormy weather, among other reasons for killing the drone.” (Originally budgeted at $35 million each, each plane will now cost an estimated $220 million.) Then Northrop “made it rain on Congress to the tune of $31 million in lobbying spending since the beginning of 2012, and in return Congress has passed legislation ordering the Air Force to purchase the arms maker’s RQ-4 Global Hawk.”

There is no evidence here of causation here, or collusion—just the appearance of impropriety. But Wittes doesn’t believe in the appearance of impropriety, does he? “I sincerely wish we did and look forward to working with them (or other companies) in the future.” What kind of serious scholar says that???

* * *

Now, as to issue (2), the podcast series with NSA principals, which Wittes says I misidentified as part of the joint project with TNR. I didn’t. I just said the podcasts prove he “enjoys extraordinary access to the NSA.” Which he and his colleagues indisputably do. He retorts that their podcasts were just something that “developed—as we made very clear on our site—out of dialogues Bobby Chesney [one of his blogging partners] has been organizing between the agency and academics.” And that all sounds very kumbaya, but I’m not sure this makes a point any different than the one I did. The NSA chooses the kind of scholars they can prefer to dialogue with. They are people who write like… Ben Wittes.

Wittes wrote to me that, to bring us to issue (3) characterizing him as “blogging on the report on the abuses of the National Security Agency…in terms highly favorable to the super-secretive and media-shy agency’ is simply indefensible. I have written exactly one post on the subject, and it contains no evaluation on the merits of the review group findings at all, merely the political observation that the report is very awkward for the administration.” And, yes, it’s true he’s only done one post on the new panel’s review, which, after all, had only been out a few days when I wrote. And he’s right: what I wrote was a stone mistake. The post I linked to was indeed neutral concerning the report, merely making the (correct, useful) point about its political awkwardness to the president. It turns out I confused that post with another one by Wittes that was highly favorable to the NSA.

The subject was Judge Richard Leon’s opinion calling bulk metadata collection by the NSA under Section 215 of the Patriot Act unconstitutional. In it Wittes calls metadata collection “a major intelligence program that administrations of both parties have insisted represents a crucial line of defense against terrorism.” He thinks this, though the panel appointed by Obama would soon announce pretty authoritatively that this just wasn’t so. That—to quote—“the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks.” Now, NSA chief General Keith Alexander and others have, it is true, bamboozled “administrations of both parties” into accepting this claim. But as has been understood for a while now, General Alexander is a liar. But apparently Ben Wittes trusts him. Which is precisely my point. People who publicly profess trust in the NSA and disparage its critics—another Lawfare post describes the new review as “sloganeering” and “scandalously slender” and calls its recommendations “extreme”—are more likely to get close to the NSA, and enjoy the favor of its contractors.

So: wrong post, right conclusion. Lawfare is largely a pro-NSA blog. And a pro-drones-that-shoot-missiles-from-the-sky-without-human-intervention blog. Which may be why Northrop Grumman likes it so much, and why it likes TNR for partnering with it.

* * *

This is getting long. But stick with me. For the next part just gets more embarrassing for our hapless interlocutor.

Turn first, though, to issue (4) in Wittes’s response. When he notes that Jack Goldsmith wasn’t paid for his posts, he’s referring to these words from me: “Let’s hear from Professor Goldsmith as to whether he is paid by Northrop for his posts at Lawfare, and whether he thinks he has disclosed that to his Harvard employers, and whether he should make the arrangement public.

Here was Goldsmith’s response:

Dear Rick You write such great books—surely you have better uses of your time. I have not disclosed any conflict of interest for writing on Lawfare because I do not have one to disclose. I am not (and have never been) paid by anyone for my posts at Lawfare. What is your next book about? I loved the last two.

Glad for the compliment, professor, and for the clarification. I accept it, while adding that I still would like to ask you, and Wittes, the fundamentally question: Why do you think it’s appropriate to solicit money for a journalistic project from a party that has a such a direct financial interest in that project? And I’d add that, Professor, you’re wrong: this has been a far better use of my time than I ever dared dream. My favorite part was learning that one of the national security state’s most respected intellectual mandarins on questions of technology and security doesn’t understand how websites work.

Check this out. Among his tweets on my short little piece, Wittes offered the following piece of text, presented as a smoking gun: “Turns out The Nation isn’t above putting advertising from defense contractors on the front page that blasts us for it. pic.twitter.com/f400Js8Zjx.” It presents a screenshot of TheNation.com with an ad for United Technologies tucked on the right side.

Oy.

TheNation.com, like most online magazine sites, sells part of its advertising space to digital ad networks like Google AdSense who in turn auction it to their own, third-party clients. These ads then show up on users’ computers according to algorithms based on their own web usage. The fact that a defense contractor showed up on Ben Wittes’s computer screen simply means that… defense contractors frequently show up on Ben Wittes’s computer screen. Which I guess in the end sort of proves my point.