Did the New York Times’ NSA Leak Harm National Security? (Part 1 – The Scoop)
Assessing the national security impact of the NSA leak is a deceptively difficult task. Hidden inside the question are a number of assumptions, a good deal of partisanship, and much that is unknown (and probably should be). It’s not something that can be covered comprehensively in a single post. Before the impact can even be considered, some parameters and definitions are necessary, and that’s why the first part of this series will concentrate on the initial article in the NY Times.
On December 16th, James Risen (author of the then-pending, now-released “State Of War
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
The story was immediately recognized for the scoop that it was, and indeed, it touches on issues at the heart of the post-9/11 world: namely, where is the demarcation between liberty and security? How far can the pendulum swing in one direction without making a mockery of the other? How much power is the executive branch given to protect America’s interests? How explicit does authorization for war-time decision-making need to be? The stakes could not be any higher.
There was more to the Times article, and the story, than that, though, and the paragraphs that followed give us some hints at the revelations to come:
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
Let’s take a snapshot here of what we already know in just two paragraphs of the Times story:
(1) Eavesdropping by the NSA was authorized by President Bush in the months after 9/11 on communications with one terminus in the U.S. and one outside without a warrant; purely domestic communications continued to fall outside what we would soon find out was called “The Program”.
(2) The effort, comprising ‘hundreds, perhaps thousands’ of targets, was intended to find ‘dirty numbers’ associated with Al Qaeda.
Let’s move on:
The Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to the United States, the officials said. Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.
…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.
Now the question before us, to restate the title of this post, is whether the leak harmed national security. ‘Defenders of the program’ told the Times it had disrupted plots, and the White House argued that current investigations could be compromised and targets alerted if the Times moved forward with the story.
And the Times listened. They sat on this huge story for over a year. Even then, they withheld some information deemed too sensitive for publication. And, though we didn’t know it at this early date, they still might not have broke the story if it hadn’t been about to break anyway with the imminent publication of Risen’s book. (The Times was not the publisher and did not profit from the book, so accusations that the story was held back in order to give publicity to the book are misguided; the Times simply did not want to miss the scoop. Now, whether that is a sufficient motive to break a story that previously the Times had felt too sensitive too publish – well, I leave that to you to decide).
Here, then, is the first leg of our case: if we want to show that the NSA leak harmed national security, the initial source for that interpretation is the very article that broke the story. The White House assertions that the revelation of the program would be harmful we will set aside as tainted – of course the White House would say that, whether it is true or not. After all, it authorized the program.
The fact that the Times itself, however, no friend to the current administration, and subject to all the economic and professional pressures that come with a story this big, saw fit to bury the story for a considerable length of time, and even upon publication withheld certain sensitive details, is a powerful piece of circumstantial evidence.
And with that, court is adjourned, until we dwell deeper in part 2…
Mark,
You have accepted the challenge, and I admire you for it. Thanks. So let’s take a look at what we have so far.
You seem to be basing the first part of your argument purely on the Times’ decision to sit on the story.
The fact that the Times itself, however, no friend to the current administration, and subject to all the economic and professional pressures that come with a story this big, saw fit to bury the story for a considerable length of time, and even upon publication withheld certain sensitive details, is a powerful piece of circumstantial evidence.
But what does this prove? Perhaps they wanted to make sure their story was accurate? Perhaps they wanted to make sure it didn’t hurt national security, and so more analysis was required? Perhaps they were intimidated by the Bush Adminisration? Who wants to defend themselves against charges of treason, even if the charges are bogus? Just ask Murtha what happens to those seen by the Bush Administration as war critics. It can get very ugly, very fast. And look at what some pro-Bush extremists have said about the NY Times after the story broke (see powerlineblog, or the always reliable Michelle Malkin, among others). Finallly, if you want to be cynical about it, perhaps the Times wanted to support its author’s book project, or at least its impending release forced their hand. Who knows?
But what we do know is that this is all, in your words, circumstantial evidence. And I don’t see a serious link between the Times’ decision to sit on the story and, in my view, the ridiculous accusations that the leak hurt national security.
That’s because I’m sure the terrorists assumed the US government was tapping their phones, and they acted accordingly right from the start. They are taught to use secure communications and to speak in code. The idea that they picked up the NY Times and spit out their coffee after reading about the secret program is silly. Only law-abiding Americans were shocked, at least those that understand the implications of government encroachment on the right to privacy.
Also, most of the examples I’ve heard to date about why this secret program was necessary, and has now been compromised, involve our need to listen in on al Qaeda conversations. But as you are certainly aware, there was nothing stopping the Bush Administration from listening in on just about any calls they deemed important, so long as they obtained a FISA warrant.
So far, color me unconvinced. But perhaps the meat of your argument, and the real smoking gun, will come in your next post.
I’m fairly sure you intended to refer to the “imminent” publication of Risen’s book… As written it has a much different feel!!
Joe-
You seems to have enormous confidence in the competence of terrorists. Please recall that the shoe bomber wasn’t competent enough to detonate the bomb he got on the plane, that the terrorists on the fourth plane lost control of it to unarmed civilians, that at the very least several other terrorist plots have indeed been foiled by counterintelligence, and even at the very highest levels that Zarqawi thought it would be a good idea to blow up a wedding in Jordan, and we were at one time listening to the phone calls made from Osama Bin Laden’s cell phone.
These guys aren’t perfect. No one is. And no form of “secure communications” is perfectly secure. Talking in code requires some direct communication to make everyone aware of what the codes mean — and for anything beyond trivial codes, that includes written code books that we can find in huts we’ve bombed in Pakistan. Using disposable cell phones just one time each similarly requires some way to get the phone numbers distributed, and as we’ve just seen in Texas, can involve a suspicious larger order of such phones.
Last point, re: FISA… Unless I’ve missed something, no one (at the NYT or in leaks or such) has ever alleged that purely domestic calls were being monitored without FISA warrants, and anyone asking for a FISA warrant to tap an international phone call would be slapped upside the head for wasting the Judge’s time. Calling an international phone call “domestic surveillance” doesn’t make it a domestic phone call.
FISA is a total red herring, here. There are issues with it later on in the conversation (the extent to which foreign surveillance ought to be grounds for domestic wiretaps… whether conversations so tapped ought to be presentable in Court for non-terror-related offenses that happen to be overheard… how to protect the privacy of the legal activities of those so monitored…) but not the one you keep raising. FISA warrants were neither needed nor appropriate for the kind of phone monitoring we’re talking about.
Great post–FYI:
http://elephantsinacademia.blogspot.com/2006/01/some-thoughts-on-press-and-gwot.html
Clint, thanks, made the correction, AE – thanks so much for the kind words in your piece, and Joe, I’ll deal with the objections somewhere in the series, as well…
[...] We’ll have more to say about this in part two of the series on the NSA leak and national security, but Nancy Pelosi has an editorial in the Washington Post today criticizing the Republicans for inaction on her proposal to: …create a bipartisan, bicameral working group to recommend improvements to the oversight process. Its goal would be to find ways for Congress to more effectively carry out our statutory requirement to specifically authorize all intelligence activities; to make sure that all information provided to the chairs and ranking minority-party members of the intelligence committees is made available to every committee member, and to better ensure that information provided to Congress by intelligence agencies is complete and candid. Her reference to the NSA program leaked by the Times is telling: The executive branch provides notice of some especially sensitive intelligence information only to the chairman and the ranking member of the minority party of the House and Senate intelligence committees, and to the leaders of Congress. This is how I came to be informed of President Bush’s authorization for the NSA to conduct certain types of electronic surveillance. I find that choice of words very revealing. She didn’t say ‘wiretaps’, she said certain types of electronic surveillance. Yet we STILL hear people talking about FISA and 72-hour notices. [...]
Two comments to elephant’s post at his blog:
1. If the NY Times’ decision to delay printing the story is really “the crux of the matter,” then you are more or less admitting you cannot say why this leak hurt national security.
2. I have no moral issues at all with the Department of Defense planting positive stories in Iraqi newspapers, so long as they were truthful stories. The problem is that it is a colossal waste of money. Only the Lincoln Group will do well out of this contract. I seriously doubt Iraqis, many of whom have recently had friends or relatives kidnapped or murdered, and see bombs going off regularly, are going to care too much about what “good news” they read in the newspapers. They aren’t stupid, and they know what the reality is in Iraq. No matter what a pro-US editorial claims.
Clint,
If most terrorists are morons, then they would have never known about FISA restrictions in the first place (such as they were – remember, a warrant was almost never denied).
So we’re back to the image of Mr. Terrorist reading his morning NY Times (assuming he can read), spitting out his coffee, and slapping himself in the head for discussing details of his coming attack to his cousin in Egypt by phone.
Not. Likely.
Joe, FISA and wiretaps are not the issue here, as I hope to show during my series (but really, come now, we’ve covered this ground before – do you REALLY think this is about wiretaps? – I don’t think you do – you showed before that you understood that this was about new technology, and now you act as if that never occurred).
If you do think it is about wiretaps, give me a citation…
Second point – yes, the Iraqis know what reality is, and survey after survey shows that, despite the carnage, they are optimistic about the future – a future they would never have had under Saddam…
Forget about “wiretaps”. Use “invasion of privacy”, or “spying”, whatever. But I believe voice surveillance was certainly part of this, yes. You can “data mine” a voice call, too, once you convert the speech to text.
Joe-
Re: AE’s point — and I trust she’ll correct me if I get this wrong — wasn’t that the NYT’s delay was the crux of the evidence that national security was harmed, but rather that the crux of the issue we should be debating is whether the NYT editorial board is the appropriate body to be determining what is and isn’t a threat to our national security, and what information should be available to the public (and our enemies).
For all the “viewing with concern” going on now with Democratic leadership, if Nancy Pelosi had been deeply concerned, she could have called Congress into a closed session to debate new restrictions and requirements of the type she’s now discussing, or the Intelligence committees could have held secret hearings into alleged abuses.
Re: Evil Geniuses or Morons…
You’re asserting an all-or-nothing fallacy. Denying the assertion that all terrorists are all flawless geniuses (as I did) is not the same as asserting that they are all, or even mostly, incompetent morons (which I didn’t). I’m merely asserting that they are human.
Of course terrorists use telephones. Of course they know that there are U.S. intelligence agencies trying to listen in on their calls. The information they don’t have is where to draw the line between a phone that is probably not secure and one that’s probably “clean.” If I were a terrorist, I’d certainly be much less certain about how secure a disposable cell phone that I’d only used twice still was — and that either is a good thing (in that terrorists are throwing away phones that we didn’t know about, and trying to get new ones, which gives us another shot at catching them at the supply phase — like this) or it’s a bad thing (in that terrorists are throwing away phones that we did know about, and tightening up their communications security). I keep saying this, but it’s still the case that you and I are just speculating when we guess which one it is.
But I can’t think of a single person who could plausibly know and who has publicly supported your position — except the editorial board of the New York Times. Given the bipartisan agreement, it seems more reasonable to believe the Administration — and Congresswoman Jane Harmon, ranking Democrat on the House Intelligence Committee, who said that this “disclosure has damaged critical intelligence capabilities.” (Follow the link for full context — her statement is mostly critical of the NSA program in question, but nothing walks back this very strong statement.) — speaking on the basis of far more information than we have, and presumably more than the editorial board of the New York Times has as well.
[...] In Part 1 of this series, I discussed the NY Times‘ blockbuster report on the NSA and warrantless eavesdropping. In particular, I focused on evidence that the Times showed awareness of the national security implications by granting the administration’s request to sit on the story for a year or more, and by withholding parts of the story deemed senstivive even after the initial publication. [...]
Clint: the crux of the issue we should be debating is whether the NYT editorial board is the appropriate body to be determining what is and isn’t a threat to our national security, and what information should be available to the public (and our enemies).
Which, I suppose the editors of the NY Times would say, is why they waited a year to better understand what they had and how it effects national security. I certainly wouldn’t want a sitting president to have the power to bury any news stories he or she believes will harm national security. Then we’d know nothing. Of course they would abuse this power! Just look at how they try to get away with this now (Katrina and Iraq immediately come to mind).
As to your discussion on the changing habits of terrorists post leak, your entire premise makes no sense. FISA allowed Bush to monitor terrorists at will, so long as he got the warrant. It was almost always granted.
And your link to Michelle Malkin’s shocking (heh) revelation that some brown-skinned people were buying mobile phones in bulk hardly helps your case. The news of their involvement with terror groups has been wildly exaggerated, as I’m sure you know. It’s just another example of how the bedwetter brigade’s paranoia is driving stupid policy.
Joe-
Paragraph One: all-or-nothing redux. “NYT editorial board shouldn’t be deciding what ought to be classified” is not equivalent to “The President should have the sole and unfettered discretion to censor all news reports.”
Paragraph Two: What on Earth does FISA have to do with anything that I wrote?? A clean phone isn’t about whether the Government can get a warrant, it’s about whether on not the Government knows that they should be interested in tapping that particular phone. Do you not understand this distinction?
Paragraph Three: The story you irrelevantly attack (Yes, I doubt that this story was really about terrorism — again, what on Earth does that have to do with anything I wrote???) was meant as an illustration of the manner in which terrorists might hypothetically be tripped up. Whether those people in particular were in any way linked to terror, or even crime, is totally irrelevant to the point.
Do you have any response to anything I actually do think, or just irrelevant asides, strawmen, and incomprehension?
Stick with addressing just one thing that I think: If the disclosure of this program has not “damaged critical intelligence capabilities” then why would Congresswoman Harmon — a Democrat, a critic of the program and, unlike you or I, someone who’s received numerous classified briefings on the subject — say that it has?? I can imagine any number of reasons why President Bush might lie about this — but why would she?
Because it’s all a lie, Clint:
http://mediamatters.org/items/200512220014
Summary: Fox News’ Jim Angle misrepresented comments by Rep. Jane Harman (D-CA) to suggest that she was satisfied with the Bush administration’s briefing of Congress on the use of domestic surveillance when, in fact, she has explicitly said that the surveillance program “goes far beyond the measures to target Al Qaeda about which I was briefed.”
So you are left with Mark’s “circumstantial evidence” as to the timing of the leak, and a big, honking lie.
Next!
Joe, you’re dodging again: Clint didn’t ask you if Jane Harman was satisfied with the briefing; he asked you why she said, in spite of her dissatisfaction, that the disclosure harmed national security. Care to answer the question he asked?
First she claims it’s essential for national security, without providing any details. Then she goes on to say she is shocked, shocked that this program is being used to spy on Americans. In other words, she has no idea how this program is being used. She is badly informed. If they didn’t tell her they were spying on Americans, what else did they or did they not tell her about the program?
You have a very confused statement from a Congresswoman who admits she had no idea about what was really happening here. In fact, it seems she still doesn’t know.
But I understand why you would like this argument. Because it’s impossible to disprove. You can just say, “you see, she says it was vital to national security, and she knows more than we do.” And there the discussion ends.
So this one statement is now the basis for your assertion that the leak harmed national security. And it is conveniently impossible to refute. We will just have to take her word for it. Even when it’s clear she was, by her own admission, ill informed about the program itself.
RINO SIGHTINGS: Three Day Weekend edition
RINO SIGHTINGS: Three Day Weekend Edition
In R.I.N.O Land we have a tradition of tossing out some of the best of our best for a little viewership pleasure every week. And Since Indy was beaten in the playoffs (Curse you god) and New England lost (…
Joe, you’re always welcome here, but I’m not arguing this point anymore with you, because you’re not listening. Jane Harman has been briefed on the program, and you haven’t, yet I’m supposed to take your word over hers. Then you ask for ‘proof’ that national security has been harmed, when you know damn well that such proof would be confidential and not available to you and me. By definition, my ‘proof’ will have to consist of circumstantial evidence.
There is no point arguing with a brick wall. I’m going to finish my series, for my own gratification, if nothing else. Feel free to denigrate it at length…but on this topic, I’m going to start letting my posts speak for themselves…
If Jane Harman was ignorant about the program, couldn’t it be because she’s stupid? Nancy Pelosi, however, is stupid and vicious.
[...] In the Parts 1 and 2 of this series, I put forth the argument that the NY Times’ leak of the NSA eavesdropping program hurt national security because (a) the Times’ own reporting indicated this, and (b) the long-term reauthorization of the Patriot Act was, at the very least, delayed because of the timing of the leak. In the 3rd installment, I want to talk about a statement by Orin Kerr, Associate Professor of Law at George Washington University and frequent contributer to the popular Volokh Conspiracy blog. [...]
[...] In parts 1, 2, and 3 of this series, I gave three reasons to think that the New York Times harmed our nation’s security by leaking the NSA eavesdropping program. The New York Times gave circumstantial evidence that it believed the leak to be harmful by holding the story for a year and only releasing it when it was about to be scooped by an upcoming book, “State Of War” by James Risen, a Times reporter. Further, though perhaps not intentionally, harm was caused to our national security by, at the very minimum, delaying long-term reauthorization of the Patriot Act due to the scoop being released on the eve of the Senate vote. Finally, I relied on arguments put forth by GWU Associate Professor of Law Orin Kerr in naming a third and fourth reason to believe harm had occurred: short-term, we may have given valuable information to terrorists on strategies to bypass our monitoring, and long-term, we may have further encouraged the development of communication networks that are routed and switched entirely outside of the United States. [...]