Hung Out to Dry

The national-security press dug up the dirt, but Congress wilted
January 22, 2009

In November and December 2005, The Washington Post and The New York Times published two groundbreaking national-security stories that revealed controversial and possibly illegal behavior by the Bush administration in its conduct of the “war on terror.” In November 2005, the Post published Dana Priest’s piece about a previously undisclosed, CIA-run, overseas prison network for off-the-books terror suspects where “enhanced interrogation techniques,” including waterboarding, were employed. Six weeks later, in December 2005, the Times ran James Risen and Eric Lichtblau’s story on the Bush administration’s secret authorization of the National Security Agency to monitor some domestic-to-international telephone and electronic communications and mine communications transactional data without a court warrant. Both stories received the Pulitzer Prize. Both stories were decried by the Bush White House as irresponsible and even unpatriotic for revealing sensitive government programs whose exposure, it said, would compromise the government’s ability to fight terrorism. And both stories prompted expressions of concern about the policies from some members of Congress, giving rise to the expectation that, as in the past, the revelations of controversial and possibly illegal government programs would lead to congressional investigations and a public accounting.

But that didn’t happen.

Congress did not hold extensive public hearings on the black-site prisons, torture, or the domestic-spying program. Instead, there was a smattering of public hearings, some closed hearings, extensive stonewalling by Bush officials of Congress’s requests for documents and administration testimony on the legal decisions authorizing the programs, and vows from the administration to hunt down the journalists’ sources for the stories. “Compare the current situation to the famous front-page story in 1974 on domestic surveillance,” notes Steven Aftergood, a government-secrecy expert at the Federation of American Scientists. “It led to the establishment of the Church committee, a classic in-depth investigation. By contrast, the Times’s NSA article has led to lawsuits that have been stymied by claims of state secrets and congressional steps to grant immunity to industry participants. Meantime, many of the most basic questions about the surveillance program have gone unanswered: How broad was the surveillance? What number of U.S. citizens were swept up in it? What has been done with the information gathered?”

Ultimately, Congress caved, sanctioning slightly modified versions of the domestic-surveillance program and passing laws that effectively preserved the administration’s right to have the CIA employ harsh interrogation techniques that are prohibited under international law. While there were a few fulminations on some liberal blogs that congressional Democrats (including then-Senator Barack Obama) had voted with the majority of Republicans to pass the new foreign intelligence surveillance law that gave retroactive immunity to the telecommunication companies, by and large the public didn’t seem terribly interested in the issue. For the majority of Americans, the issues of government-authorized torture and domestic spying seemed to fall off the radar, and it was hard not to sense that the Democrats, ever afraid of being portrayed by the White House as soft on terrorism, were just as relieved as the Republicans to see the issues go away.

But it didn’t go away for everybody, not least for the reporters who broke the stories and for many of their sources and contacts. The Bush administration has left in its wake a demoralized national-security press corps, battered by leak investigations, subpoena-happy prosecutors, and a shift in the legal and wider culture away from the previous understanding of journalism’s mission and First Amendment protections. A 2007 study by The Reporters Committee for the Freedom of the Press found a five-fold increase since 2001 in subpoenas seeking information on a media outlet’s confidential sources.
While the NSA and black-site stories exposed previously unknown Bush administration policies that some observers believe could be illegal and unconstitutional, the administration, in highly coordinated campaigns, tried to turn the onus of the revelations on its head, accusing the newspapers that exposed the information of treachery. “There can be no excuse for anyone entrusted with vital intelligence to leak it, and no excuse for any newspaper to print it,” Bush said in St. Louis on June 28, 2006. That same week, at a fundraiser in Nebraska, Vice President Dick Cheney said: “Some in the press, in particular The New York Times, have made the job of defending against further terrorist attacks more difficult by insisting on publishing detailed information about vital national-security programs.”

The Times’s Risen, in particular, is still haunted by an investigation that has been turned upside down and in whose crosshairs he now finds himself. In January 2008, Risen received a federal subpoena, issued by a grand jury in Alexandria, Virginia, which demanded that he testify about the identities of his confidential sources for a chapter in his 2006 book, State of War. Though the chapter for which Risen was subpoenaed described a botched CIA operation designed to foil Iran’s nuclear program—information that never appeared in the Times—Risen’s book also contained the information about the NSA’s warrantless surveillance program that he and Lichtblau had reported but that the Times had sat on for more than a year at the administration’s request. Risen’s decision to publish the information in his book was a prime impetus for the Times’s decision to revisit the issue and ultimately publish the domestic-snooping information in December 2005.

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Risen has said he will resist the subpoena, even if he has to go to jail. And though he has some of his profession’s highest achievements to show for his work—the aforementioned Pulitzer and several nonfiction books on intelligence matters—they have done little to ward off the sense of anxiety and anger over his Kafkaesque predicament: “I do think one of the great ironies is that I may be the only one who goes to jail out of all this,” Risen said in May, “while Congress is trying to give immunity to the telephone companies.”

Even before the subpoena was delivered to his lawyers this past January, some of Risen’s contacts were being subpoenaed to appear before the same grand jury. “The intimidation begins with the document itself,” says one Risen contact, who was subpoenaed and who asked to remain anonymous. “ ‘You are commanded to appear’—that will get your attention. It’s delivered by a couple FBI guys.”

The leak investigations, concern about government scrutiny of them and their contacts, partisan attacks on their ethics and patriotism, and hours huddled with lawyers have taken a toll on reporters. “It is certainly something you worry about every day,” says Lichtblau, who covers the Justice Department for the Times. “It has an effect on how you do the job, an effect on the people you talk to.” In his book Bush’s Law: The Remaking of American Justice, Lichtblau amplifies this point with a story of a very close friend who worked in the government. After Lichtblau’s domestic-spying piece and a subsequent, related piece on the swift banking-transaction network appeared, his friend’s bosses “told him that he would either have to end his friendship with me, or leave the government,” Lichtblau says.

“It’s a witch hunt,” Risen says. “They are trying to shut us down. It’s the most secretive administration in modern history.”

Perhaps nothing is more demoralizing, though, than the sense that journalism’s most groundbreaking investigations did not yield the kind of public accountability, congressional investigations, and reform that past eras have seen—that the system of democratic checks and balances, of which the press is only one part, is broken. Most of the abuses of the last eight years were pursued and exposed not by Congress, but by the press. “I have found that the stories which most anger and haunt journalists are not necessarily the ones with the most violence,” says Bruce Shapiro, the executive director of the Dart Center for Journalism & Trauma. “They are the stories in which we felt our intervention to have accomplished nothing. What’s really striking with the Risen story is precisely that sense of powerlessness: they committed this great act of journalism, and broke a story of a violation of federal law that raises fundamental questions about abuses of power in our society. And then the great institutions of society don’t respond, but instead turn around and say, ‘Fuck you.’ That is a huge invalidation of all the work, and further betrayal of our sense as journalists of what’s right.”

The system did not work, and is still not working. When the stories on black-site prisons and domestic wiretapping broke in late 2005, the Democrats were still a minority in Congress, and Republicans largely protected the administration from scrutiny. But even after the Democrats won majorities in the House and Senate in the 2006 midterm elections, their interest in high-profile investigations of controversial administration behavior on the national-security front remained muted. Part of the explanation, says Dana Priest, who wrote the Post’s CIA-prison story, is that the information in her piece and the Times’s NSA report is “all classified. For an informed member of Congress, if they had a secret briefing and read my story, they are still hamstrung from discussing it, because they had the secret briefing.”

But past instances of journalistic revelation of secret government programs also involved sensitive or classified information—the Pentagon Papers, for instance, or the story in the 1970s about how the federal government was engaged in domestic spying, which led to the Church committee hearings in 1975 and the passage of the Foreign Intelligence Surveillance Act requiring court warrants for domestic surveillance. So what’s different today? Why is fear of discussing press accounts of classified programs, even among powerful members of Congress, seemingly greater now than in past eras? “What’s different now is that they are still partly worried about looking soft on Al Qaeda,” Priest says. “Al Qaeda got put in such a bogeyman box. And everybody is afraid they could be accused of being soft on terrorism. That is the death knell for people.”

This fear factor has been central to the Bush administration’s post-9/11 strategy on any number of fronts, but arguably none more so than in its efforts at secrecy. All administrations want to keep some information secret, Seymour Hersh, the veteran investigative reporter, tells me. But the Bush-Cheney White House is “more secretive. They are better, smarter; they do much more stuff and hide behind jingoism,” he says. “There’s been an incredible diminution of Congress. The truth of the matter is it is different now. It is different under these guys.” Bureaucrats who in the past would have resisted leak-investigation demands from the administration, Hersh says, are today “more compliant.” Hersh says that back in the 1970s, when he broke the story about the government spying on Americans, a top Justice Department official (Gerald Ford’s attorney general Edward Levi) told those in the White House (including Ford’s chief of staff Dick Cheney) who were seeking to pursue a leak investigation against Hersh, “Are you kidding? Get the hell out of here.” Not any more. And that sense of fear and intimidation has seeped into the DNA of media institutions as well, Hersh says. In the climate that prevailed after the terrorist attacks of September 11, 2001, “newspapers decided they were on the team. And that set off a chain, an attitude, that chilled the First Amendment right away.” It contributed, he suggests, as well to the media’s insufficiently skeptical reporting on the Bush administration’s prewar claims concerning the threat posed by Saddam Hussein.

The chill is still evident. One top national-security reporter, whose reporting led to an internal-leak investigation at a federal agency and therefore requested anonymity, says such investigations can remain open, inhibiting sources and follow-up reporting even if the investigations don’t lead to criminal charges. “You have to be aware of your sources,” the reporter says. “What are you going to do? You have to lay off. They leave them open for a purpose.”

The reporter says federal officials had also been effective at inhibiting follow-up reporting by other journalists on controversial subjects by implying, sometimes falsely, that some of the information reported by their colleagues was wrong. The reporter cited as an example the allegations in Risen’s book regarding the CIA and Iran. “The agency was very successful in convincing other reporters that Risen’s report was wrong,” the reporter says.

What remains unclear is whether the new legal precedents and interpretations established by the Bush Justice Department—which contend that the press has no fundamental privilege to protect the identities of confidential sources in fulfilling its mission to ensure the public’s right to know—will swing back now that the Bush administration’s reign is over. Though there are reasons for optimism on these issues under the Obama administration—from its stated intent to close Guantánamo to signals that it is considering establishing a commission to examine government conduct in the “war on terror”—it is unclear how much can be easily undone; or how much of a priority that will be for the administration.

Given the massive, urgent problems confronting the new administration (the economy, Iraq, Afghanistan, etc.), it could be forgiven for preferring to look forward rather than back. Beyond that, it also isn’t clear that congressional Democrats have an appetite for a thorough excavation of the Bush administration policies.

One congressional staffer, who works on national-security issues and who asked to speak on background, suggests that one reason Congress has not been more aggressive in following up on the domestic wiretapping story, for instance, is that there was a sense, even among many Democrats in Congress who had been briefed on the program, that the administration was pursuing these programs not for “nefarious reasons, but to catch bad guys”—that it was not using the program to spy on domestic political enemies, for instance, as had occurred in the 1970s.

Furthermore, the staffer says, there has not been until now much political incentive or evident public appetite for pursuing these issues. There was an attitude, he says, when Democrats took control of Congress, of “Let’s not be seen as the party that wants to prosecute. And a lot of this stuff has been accepted by the general public.”

In the meantime, the press is finding new ways to fight back, regaining some of its assertiveness that had gone missing in the years following 9/11. Lucy Dalglish, from The Reporters Committee for the Freedom of the Press, notes, for instance, that some news organizations have added provisions to their contracts with telecom service providers demanding that they not give the government any of the organization’s records without first informing the company, or unless under subpoena.

It’s a start. 

Laura Rozen reports from Washington, D.C. for Foreign Policy magazine.