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2008-04-01

EXCLUSIVE...Bush’s Law: Eric Lichtblau on Exposing the NSA’s Warrantless Wiretapping Program and How the White House Pressured the New York Times to Kill the Story

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Eric Lichtblau, won the 2006 Pulitzer Prize for national reporting for his stories on the NSA’s wiretapping program in the New York Times. His new book is Bush’s Law: The Remaking of American Justice.

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In a national broadcast exclusive, we speak with New York Times reporter Eric Lichtblau about his new book, Bush’s Law: The Remaking of American Justice. Lichtblau won the Pulitzer Prize for exposing the Bush administration’s warrantless wiretapping program in December 2005. He reveals the inside story of the New York Times’s decision to delay publication of the story for more than a year after intense lobbying from the White House. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: After months of debate, Congress has yet to authorize a new domestic surveillance law amidst a standstill over immunizing telecommunications companies that aided government spying. Last month, the Democratic-led House narrowly passed a bill excluding the immunity provision, despite a threatened veto by President Bush. Bush wants the House to mimic the Senate version, which reauthorizes National Security Agency spying while shielding telecom companies from retroactive lawsuits.

The NSA launched its warrantless spy program in October 2001. But it took over four years for the program to become publicly known, finally revealed by the New York Times in December 2005. My next guest is one of the two New York Times reporters who broke the NSA story. Eric Lichtblau has just come out with a new book; it’s called Bush’s Law: The Remaking of American Justice.

The book’s new disclosures include an account of fierce anxieties within the Bush administration on the program’s legality when it began. Eric Lichtblau also reveals the inside story of the New York Times’s own decision to delay publication of the story for more than a year after intense lobbying by the White House.

Eric Lichtblau won the 2006 Pulitzer Prize along with James Risen for breaking the NSA spy story, joining us now from Washington, his first national broadcast interview following the book’s publication.

Welcome to Democracy Now!, Eric.

ERIC LICHTBLAU: Thanks for having me.

AMY GOODMAN: It’s good to have you with us. You say that the war on terror that the Bush administration employed to mask the most radical remaking of American justice in generations. Explain.

ERIC LICHTBLAU: Well, what we’ve seen since 9/11 is really a historic shift, as I try and lay out in the book, in the way we look at intelligence and law enforcement and the role of the federal government. You know, it’s akin to what Hoover did at the FBI in going after organized crime in the ’50s and ’60s or against Communists. It’s just a remaking of the sense of what the federal government’s purpose is. After 9/11, Bush and his top advisers — Rumsfeld, Ashcroft, Gonzales, Cheney certainly — said this will not happen again, and they made clear that every branch of the federal government would be tasked to remake itself within the Pentagon, within the Justice Department, within the CIA, within the NSA, to ensure that every possible lead, every possible tension that could lead back to al-Qaeda would be checked, would be scrubbed before another attack could happen. Now, what was lacking in that pursuit was really the checks and balances that we’ve taken for granted in terms of constitutional principles, and that’s the story that I try and lay out in the book.

AMY GOODMAN: Tell us how you stumbled on the NSA warrantless wiretapping story.

ERIC LICHTBLAU: Well, what I lay out in the book is that in the chapter that discusses the back story, if you will, the story of how the New York Times came to publish the story, was that there was an intense nervousness over this program from the very beginning, literally from the first hours and days that it began in October 2001. There were people within the government, within the FBI, within the Justice Department, who were worried that the NSA was doing something illegal. Remarkably, they kept a bottle on that for the better part of two-and-a-half years.

My partner and I — Jim Risen — simultaneously, but separately, began hearing some of these rumblings in 2004 through sources that we had. I covered mainly Justice Department issues; Jim covered mainly intelligence and CIA issues. We both began hearing things in 2004. At the time — we only learned later, it was at the time that really there was this revolt within the government that led to the near-resignations of more than twenty people within the administration over this program. What we were hearing was really the steam blowing over on this program, and that led to months of reporting that led to internal strife within the paper over whether or not to publish this paper —- whether or not to publish this story. And the paper initially decided, after really agonizing internal deliberations, that because of the administration’s insistence that this could harm national security, it would not publish the story. They came back at that decision obviously more than a year later in late 2005 and ultimately did decide to publish the story.

AMY GOODMAN: Explain what happened, because this was not just any date when the New York Times squelched the story in 2004. It was right before the -—

ERIC LICHTBLAU: Well, you’re referring to the November ’04 election, I assume.

AMY GOODMAN: Yes.

ERIC LICHTBLAU: Yeah, I think the timing was more-or-less coincidental, but yes, the period around which we were discussing this was October, November 2004. There was, as I describe in the book, there was a draft of the story in hand with the outlines of the program, as we essentially know it today, in hand. And the paper went over that draft, went to the administration, discussed what we knew, heard out the White House in great detail as to its objections, ultimately decided just before the election of November ’04 that — as I say, the timing was somewhat coincidental; that couldn’t be removed from the debate entirely, but it was really a matter of happenstance that we happened to be debating this right before the election —- decided initially before the election that the editors felt we did not quite have enough to go, then came back at it immediately after the election, decided we still did not quite have a story that we could publish, given the administration’s insistence about the national security concerns. And then the story -—

AMY GOODMAN: Eric, explain the meeting — explain the meeting that the New York Times first had with the White House. Who was there?

ERIC LICHTBLAU: Sure. There were a number of meetings, and I’m not going to get into those in any great detail, partly because I was not at a number of the meetings. I was at some of them, but not all of them. There were ground rules that I’ve tried to respect. The White House has put some of those meetings on the record; the newspaper has put some on the record. So I’m a little bit careful about what I can and can’t say here.

But once the newspaper went to the administration to say we understand that there is such a program, that led to a whole series of meetings with the administration, with intelligence and political officials within the administration who laid out the case in quite strident terms that this was, in their view, a critical national security program, that this was a vital way to stopping the next attack, that there were no legal concerns about this program.

Now, as I lay out in the book, and I think this is one of the strongest arguments for publication, many of the assertions that were made by the White House in those meetings and in the subsequent meetings a year later turned out to be untrue, especially about the legal safeguards of the program. The administration insisted, as Alberto Gonzales would insist once this became public, that there was never any legal debate about the program, that no members of Congress who were briefed privately about this ever expressed any concern, that there were clear safeguards in place from the very beginning, clear protocols at the NSA. Our reporting independently had called all those assertions into question, if not debunked them entirely.

AMY GOODMAN: The description of the meeting you did attend — this was right before your colleague was about to publish his book, but that hadn’t quite happened yet — you and your editors, Bill Keller, met with Condoleezza Rice. Can you describe that meeting and the concerns they expressed? This was in what? 2005, December?

ERIC LICHTBLAU: Right, that was just a few weeks before the story ultimately ran, December 16th of 2005. And this was what we thought was the — sort of the last gasp effort by the White House to stop publication of the story. Our editor Bill Keller by that point had decided pretty much that he was leaning towards publication. This was now another chance, a last chance, for the White House to lay out its concerns.

They repeated a number of concerns, that there was never any question about the legality of this program within the administration; that all the lawyers had always signed off on it; that this was vital to national security; that if the program were to be revealed publicly, it would become useless and would be canceled the very next day after we wrote our story, which of course did not happen; that the telecom companies who participated would be sued and that they would be hit with financial damages. All these arguments were laid out in very, very earnest, stern tones.

The message, as I said, that was taken away from this was that if there is another attack because you run the story, there will be blood on the New York Times’s hands. That was the message that we all took away from this. If there is another calamity because of — if there’s another calamity after the New York Times runs this story, we will be responsible.

AMY GOODMAN: Is it right, Eric, you were still — the Times wasn’t going to run this story until to your colleague Jim at the New York Times was going to publish his book, and that put the Times in a tremendously awkward position? It’s going to come out anyway, and their reporters are not the ones who are going to reveal it.

ERIC LICHTBLAU: Yeah, that’s true, for the most part. What I discuss — you know, these were not easy decisions for anyone, and I think the editors handled it responsibly, and I don’t know that in — I think you have to put yourself back in the climate of early 2004, when the media was in a much different place. We were only a couple years out of 2001. I’m not sure there were any — there’s any major newspaper in the country that would have published the story in that situation.

You then fast-forward to 2005, my partner Jim Risen had a book that he was doing on intelligence issues. This story was basically on hiatus. He had made a determination on his own that he was thinking of putting the story in his book. He had confirmed with me, although he certainly wasn’t looking for my blessing. He had let the editors know, and there had been some conversations with them about what he was considering doing. That then led to a whole series of discussions, where the editors revisited this whole topic.

But I think the burden was still clearly on me and Jim to say why should this story run. OK? Jim’s book is out here; that’s going to be coming out in a few months. But tell us what has changed and what were these legal concerns that were so great that you were telling us about a year ago that should make us publish this story? The burden was still on us to show that.

AMY GOODMAN: And the Pentagon Papers, how did they fit in at this point in what the government could do once again?

ERIC LICHTBLAU: That was kind of an interesting coda to all of this, because we were — the decision had pretty much been made in early December to run the story; it was really just a question of when it would run. The administration was still seeking time for more meetings. The clock was ticking. And the PATRIOT Act, if you recall, was then being reauthorized; Congress was going to vote on it any day. So it was a question of which was going to come first: was the story going to run, or was the PATRIOT Act going to be reauthorized?

In the middle of this debate, of this waiting game — we’re waiting day by day to see what’s going to happen, whether this story is going to run — I had heard, in an almost offhand way from a source, that the administration had considered using a legal tactic that had been used thirty years earlier in the Pentagon Papers to seek a court injunction to stop us from publishing. And that had just tremendous implications to the newspaper. The Pentagon Papers case was, you know, the seminal case of censorship in journalism history, at least attempted censorship. And the fact that the administration was looking to that method again to potentially stop publication really kind of lit a fire, at least for me and my editors in Washington. And the immediate effect it had was to ensure that — I think it helped to speed the paper in the paper and — to speed the publication in the paper. It also helped to make sure that we posted the story on the internet, because they might be able to stop the presses, but they couldn’t stop the internet. We posted the story online the night before. We lost our exclusive — everyone else in town had the story the same day we had — but at least it was online, and they couldn’t — and no court injunction could stop us.

AMY GOODMAN: We’re going to go more extensively into just what this wiretapping program is all about with Eric Lichtblau. He is publishing his book today, Bush’s Law: The Remaking of American Justice. New York Times reporter who won the Pulitzer Prize for exposing the NSA wiretapping program. We’ll be back in a minute.

[break]

AMY GOODMAN: Our guest is Eric Lichtblau. He won the 2006 Pulitzer Prize for his reporting on the NSA’s warrantless wiretapping program. His new book is called Bush’s Law: The Remaking of American Justice. Eric, lay out this warrantless wiretapping program.

ERIC LICHTBLAU: Well, this was a program that started within weeks of the 9/11 attacks. The NSA historically, traditionally, legally has been restricted from surveilling, from eavesdropping on American citizens. There’s sort of a written and unwritten understanding in intelligence circles that the NSA does not spy on Americans, it does not train its satellites on Americans to eavesdrop on their communications, their emails, their cell phone conversations, etc.

What happened after 9/11 was that President Bush authorized a radical shift in this interpretation and allowed the NSA, within weeks of the 9/11 attacks, to intercept international communications of Americans, meaning a call from Detroit to Kuala Lumpur, for instance, or an email from Riyadh to Los Angeles, without going to the court that was specifically designed to handle cases like that, a court called the Foreign Intelligence Surveillance Act court, the FISA court, which was set up in the 1970s in the wake of the Watergate abuses. This was a court that was set up specifically to guard against the abuses of presidential authority and to have some checks and balances. And President Bush authorized the NSA to, on its own authority, establish when Americans might be involved in suspect terrorist activities.

And this was a program that, as I lay out in the book, from the very beginning caused really tremors of nervousness and angst throughout the government, particularly in the law enforcement branches of government, at the Justice Department, at the FBI. I lay out scenes at the FBI where FBI agents stumbled onto this program accidentally within about twelve hours of its inception, and there was a firestorm of anxiety: “What the hell is going on here?” was the reaction literally of one official. This went up the fire poll to senior officials who said, “What is going on here? The NSA is not supposed to be in the business of spying on Americans.”

It was quickly determined that it’s OK, the President has personally approved this, but it was kept to such a small circle of officials, which was really at Cheney’s doing. It was because of Cheney and his counsel, David Addington, that there was an unusually tight, even for a secret covert program, an unusually tight circle of people who even knew about this program, both within the executive branch and in Congress. In Congress, the intelligence committees normally would have been and should have been legally informed of this program. Instead, it was kept to the members of the so-called Gang of Eight, the top four members of each branch, because of, again, this, as I describe in the book, almost paranoia about leaks.

And there was a real downside to this: because of that secretive nature, that intense secretive nature that was surrounded this program, it bred a nervousness and suspicion within the government itself. There were people within the government who had reason to know about this, because their jobs depended on knowing about intelligence programs, who either stumbled onto it accidentally or who heard rumors about the program or what’s going on, and immediately came to suspect “Is something illegal going on here?”

I lay out, for instance, that within days of the program beginning, the Deputy Attorney General at that time, Larry Thompson, was brought a bundle of wiretap applications for the FISA court to sign. They required his signature. And some of these wiretaps had grown out of the NSA program. In other words, some of the things that the NSA was doing without a warrant, there was then a determination that the Justice Department would go back and try and get a warrant in order to perhaps try and build a criminal case. Thompson was one of the many people who was not read into this program, who didn’t know what was going on, and he sees that there is this mystery program out there. And he asks an aide to write up a memo: “What am I supposed to do with these applications?” And the aide and Thompson came to the conclusion: “I’m not signing these things. I don’t know what these are.” And he refused to sign off on these wiretaps, because they’re of such suspect origin. That’s just one of many examples of kind of the anxiety that surrounded this program even from the very first few hours and days.

And that led to an even higher level even, what’s now become even more public, a revolt, really, in 2004, if you speed up a couple years, when at the bedside of Attorney General John Ashcroft, at that point, there was a whole new cast of characters in the Justice Department, including Jack Goldsmith, who was the head of the Office of Legal Counsel, who looked at aspects of this program and determined that they were potentially illegal. He thought that the legal authorization given to this in the early days, which was sort of an afterthought, as I lay out in the book, was shoddy, slipshod, really just very a cursory review. He went back at it and refused to give his sign-off to the program, because he thought this was unconstitutional.

And this led to a dramatic, dramatic standoff at the bedside of John Ashcroft, because Ashcroft was in the hospital after pancreatic surgery. His deputy was refusing to sign off on the program. Alberto Gonzales, who was then the White House counsel, and Andy Card, who was the Chief of Staff, go to Ashcroft’s bedside to try and get Ashcroft to basically overrule his deputy and determine that this program is legal so they can continue doing it.

So you see, as I try and lay out in the book, I mean, this was really, from its earliest beginnings, a constitutional crisis in the making over this program, because of what some people saw as just a power grab in terms of the executive branch, in the view of some people, running roughshod over checks and balances in the name of executive power.

AMY GOODMAN: Eric Lichtblau, Democratic Congressmember Jane Harman of California was one of the members of Congress who tried to stop you from publishing the article. Can you describe what she said?

ERIC LICHTBLAU: Well, what I lay out in the book and what I can say is that there was a period during the hiatus, as I call it, when the story was on hold, when the paper decided it was not going to run the story, when I was covering a hearing sort of in my day job covering the PATRIOT Act, and Harman had given a fairly eloquent defense of civil liberties and a call for more checks and balances. And I didn’t plan to ask her about the NSA program. I knew that she knew about it. I had the sense that she was a defender of it. And sort of impromptu, I asked her in the hallway how what she had just said at this hearing squared with her views on the program.

And she was quite alarmed that I was asking her about this program in a Capitol hallway, and she shooed away her aides and said, “They don’t even know about this. You shouldn’t be talking about this here,” and very quickly made clear that she thought that the paper had done the right thing by not publishing this story, would not get into any of the details. I tried to ask her why she thought publication would harm national security, and what about the legal ramifications here, and all she would say was that this was a story that should not be publicized.

AMY GOODMAN: Now, though she doesn’t dispute the account, she did take issue with you saying her views on the program’s legality changed after the story went public. She said, quote, "My views on this subject have not undergone a ‘dramatic transformation.’ I have said all along that we must protect the operational details of programs designed to learn the plans of foreign terrorists — in order to prevent and disrupt those plans. At the same time, Congress must insist on iron-clad protections of the Constitutional and legal rights of all Americans.” Your response, Eric?

ERIC LICHTBLAU: Well, I do say in the book that her views underwent a fairly dramatic transformation. Look, I’m not looking to beat up Jane Harman personally here. I think that she was in a difficult spot, as were the few members of Congress who knew about this, because they were given such limited access by the White House about this program. What was interesting to me and says a lot about the ways of the Capitol Hill in some ways was that immediately after the program became public, Harman, who, as she says in her posting yesterday, was pretty much a defender of the program, quickly became a very outspoken opponent. So when I talk about her dramatic transformation, she went from someone who thought this was a critical program that should not be publicized to someone who attacked President Bush very aggressively and was raising all sorts of legal and constitutional questions. So I found that shift fairly significant.

AMY GOODMAN: Eric Lichtblau, Congress recently held a secret session. They have rarely done this. I think it was the sixth time that they did this. It was around the issue of wiretapping. What do you understand about what happened? And then talk about the showdown now in Congress, the standoff over telecom immunity.

ERIC LICHTBLAU: Yeah, the secret session was, I think, the first one since 1983, since the vote on Contra funding. I don’t know that there’s a whole lot in the way of substance that went on in that secret session. It was, in some ways, I think, a chance for the Republicans to beat up on Speaker Pelosi, who at one point was one of the members who was given access to the program early on, although Pelosi did raise concerns about it and has since released a letter that was once classified raising concerns about what the NSA was doing. So my understanding is that the secret session, as far as it went, did not produce a whole lot in the way of new disclosures, even to members in a classified setting.

We’re really at a standstill. I think everyone is amazed that there has not been a resolution on the whole NSA issue this late in the game. You know, it’s now been almost two-and-a-half years since we first disclosed the program in the paper. We’ve had two-and-a-half years of almost constant debate on the government’s spy powers.

And it looked almost certain six months or so ago that the White House would succeed, as it has done on any number of other national security issues, in getting the type of legislation that it wanted. It got a plan through the Senate that would not only broaden the government’s surveillance powers, give them the ability to get broader what they call basket warrants, rather than having to establish individual probable cause to look at broad groups of people at one time — it not only did that, but it also gave the key factor of retroactive immunity for the phone companies, meaning that those phone carriers — AT&T, etc. — that took part in the program after 9/11 would be protected from the lawsuits that are now pending against them. There are some forty or so lawsuits. That has been a key priority for President Bush and his administration, is protecting the companies from legal liability. So it got that through the Senate. The House has held its ground, which has surprised a lot of people who — especially on the left, who have criticized the Democrats for, in their view, caving to the White House on national security issues, on any number of national security issues. And so, we’re at a standstill. And there’s no sign at this point as to which side is going to blink first.

AMY GOODMAN: Eric Lichtblau, explain how you lost your press pass.

ERIC LICHTBLAU: How I lost my press pass —- that actually predated the whole NSA story. That was when I was just covering routine Justice Department issues, and there had been a number of run-ins with the Justice Department during Attorney General John Ashcroft’s tenure over stories that the department felt were too critical. And there was one in particular, when I wrote a story about the FBI gathering intelligence on antiwar demonstrations, anti— — over Iraq antiwar demonstrations, and that was a story put on the front page. It was an exclusive involving some internal memos that had gone out, an alert that had gone out to field officers describing tactics, many of them lawful tactics, that antiwar demonstrators were using. And the Justice Department and the FBI were not at all happy with that story and let me know it. And I showed up for an interview a few days later — there had been some back-and-forth with my bureau chief, heated exchanges between Ashcroft’s aides and my bureau chief. I showed up for an interview, and my press pass had been confiscated by the Justice Department. And at that same time, the FBI had put out an internal memo to its people advising them not to talk to me anymore.

AMY GOODMAN: In the stories, you expose the spying on, well, groups like the Quakers and the Truth Project, dealing with issues like taking on military recruiters in schools.

ERIC LICHTBLAU: Right, right. Yeah, it’s part of what I describe in that chapter of the book as a — as really just sort of a general paranoia, I think, of anyone who could be considered a threat. And this had really bled down from the highest ranks of the government, that whether it was the person — whether it’s the person getting on the plane, whether it’s the protester at the corner, whether it’s the person at the college campus, if there’s any sign that someone could be considered a threat, they have to be treated as a threat — the One Percent Doctrine, Ron Suskind called it, in attributing it to Dick Cheney. I think this was an attitude that really bled down even to the local cops who were part of the joint terrorism task forces that work with the FBI.

Before, someone might have gotten — you know, might have gotten an odd look from a police officer and thought nothing of it. Now, they will be entered into a database. And in the case of the military database, they collected upwards of 280 files on peaceful antiwar groups. And these were files on groups that had done nothing more than protest against the war.

AMY GOODMAN: You also write about how the tensions increased over your piece in June 2003, when you wrote a story raising questions about the role of Mike Chertoff, who is now the Homeland Security secretary, playing in the decision not to give John Walker Lindh access to a lawyer in Afghanistan.

ERIC LICHTBLAU: Right, right. That was sort of the beginning of the end of my troubles with the Justice Department. I wrote a story about an internal whistleblower, I would call her, at the Justice Department, Jesselyn Radack, who had raised concerns about whether or not Lindh’s due process rights had been violated. And Chertoff, who was at the Justice Department as the head of the Criminal Division, was directly involved in this, in having to testify before Congress about what went on in this case. Radack had raised concerns about whether or not Lindh should be entitled to a lawyer, whether or not his family in San Francisco had gotten him a lawyer, whether or not he could be questioned in Afghanistan without a lawyer present. And, of course, he made some very incriminating statements for — in days in captivity without a lawyer present.

You know, who was right and who was wrong is a matter of some debate, but, you know, Radack raised some serious issues and was essentially persona non grata at the Justice Department for a long time because of it.

AMY GOODMAN: Eric, we have ten seconds. What have you been most shocked by in what you’ve learned since you first broke the NSA wiretapping story?

ERIC LICHTBLAU: I guess kind of the punishment of those who dissent. I mean, as a segue from Jesselyn Radack and others, the fact that people who dare to question some of these policies are often penalized for it.

AMY GOODMAN: Eric Lichtblau, we have to leave it there. Thank you very much. His book is Bush’s Law.

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