This is the first in an occasional series asking journalists and other media professionals to recount noteworthy open government and information access struggles.
Six years and a day after 9/11, I filed a complaint in federal court asking a federal judge to do what New York Times reporter David Barstow and I had failed to do in countless phone calls and letters for nearly a year and a half: get the Department of Defense to respond fully to David’s freedom-of-information request.
The request was gargantuan—basically, David wanted every piece of paper the Pentagon had about dozens of retired military officers who had been deployed by Defense to sell the war in Iraq—and our hopes were modest. Freedom of Information Act cases often move slowly, and Defense had little interest in shining any light on how the retired officers—now rechristened “analysts” on TV—had been given special access to Pentagon briefings even as some of them pitched business for military contractors.
There was also this: Our judge was a former government prosecutor, freshly appointed to the bench by President Bush.
Nothing quite prepared us for what followed. Over the next six months, Judge Richard J. Sullivan’s orders drove the release of thousands of pages of documents, and when the Pentagon stalled, he took no prisoners. The last time we appeared in his courtroom, he made himself clear: “The Executive Branch doesn’t get to just thumb its nose at a separate branch of government.”
He proceeded to order Defense to start producing the remaining documents that afternoon. “I am going to give the Department of Defense one last chance to get its act together. There will be no extensions,” he said. “I don’t care what the reasons are.”
The hundreds of additional documents that suddenly followed, along with what we had obtained earlier, became the backbone of David’s story on the military’s “message machine.” Last week, that story won the Pulitzer Prize for Investigative Reporting.
Newspaper lawyers are hardly in a position to write “how I got the story” pieces. It’s a little like asking Picasso’s paint supplier to explain “Three Musicians.” But David’s work, which brilliantly combined the documents obtained in the lawsuit with the rest of his reporting, vindicated our decision in the fall of 2007 to go to court.
There’s no question that luck played a role the day I filed the suit and the clerk randomly pulled Judge Sullivan’s name. Whatever his political leanings, Judge Sullivan got our fundamental point: Defense was not playing by the rules, and the courts were the only ones that could do something about it.
But other things helped. David and I used his reporting to shape our litigation strategy. He had received some documents early on, and sources had provided others. We were able to use those to show the assistant U.S. attorney assigned to our case that Defense was not doing a thorough search, overlooking people whose files needed to be searched and missing obvious documents.
Every time the government sent documents, or provided us with declarations attesting that a diligent search had been done, David and I dug back into the documents and looked for every contradiction we could find, every hint that the search had been incomplete. And then I wrote another letter to the AUSA insisting that more be done.
When you sue a federal agency, it is almost always an attorney from the local U.S. attorney’s office who gets the case. Those attorneys have no connection, and no particular loyalty, to the agency in Washington that is disregarding FOIA. They are professionals who do not want to embarrass themselves or their office in front of judges they will be seeing again in other cases. And, at least in the Southern District of New York, they realize they are public servants, not just advocates for a recalcitrant Washington bureaucracy. If you can show them their clients are not playing by the rules, they do the right thing.
And we knew things were not right at the Pentagon. Both David and I received whistleblower messages from Pentagon employees, telling us that we were not being told the truth by Pentagon officials about the FOIA response.
Of course, to litigate a case for Barstow is to understand how the people on the other side of his reporting must feel. He doesn’t stop asking. He always believes that one more e-mail, one more letter, one more phone call to the AUSA might do the trick.
So week after week, I kept writing and calling. (Pity the poor AUSA. She had friends at the Times, and when the Times’s general number showed up on her caller I.D., she could never be sure whether it was one of them or me. Again. I could hear the disappointment every time she guessed wrong.)
But by April of 2008, I had pretty much hit the wall. We had received lots of documents, but we were owed more. The government had just written a letter to the court asking for additional time. I decided to let it go. If the judge wanted to give Defense more time, so be it.
That afternoon, the producers developing the web version of David’s story came to show me what they were working on. As a video of the story unfolded, viewers could click on links that would take them directly to the documents being discussed. It tapped into the power not just of the Internet but of the documents themselves to tell an important story to readers.
In the midst of that meeting, Judge Sullivan’s clerk called and wanted to know whether I intended to send a response to the government’s letter. I told him the letter would be there in an hour. “If DOD is unable to review and produce responsive documents in time to meet a Court-ordered deadline, it is an emergency solely of DOD’s own making,” I wrote. I asked the court to order Defense to produce the documents “forthwith,” even though I wasn’t quite sure what that meant.
I learned quickly. Judge Sullivan read my letter and scheduled a hearing for the next day. It was there he issued his “last chance, no more extensions, don’t care what the reasons are” order.David E. McCraw is a vice president and assistant general counsel for The New York Times Company.