< Breaking the Wiretap

Transcript

Friday, April 11, 2008

BROOKE GLADSTONE:
And I'm Brooke Gladstone. A few weeks ago, we offered an anatomy of an historic 40-year-old scoop, the uncovering of the My Lai massacre. This week, we present a more recent one. In December of 2005, The New York Times published an article disclosing the existence of the National Security Agency's warrantless wiretapping program, earning Eric Lichtblau and James Risen a Pulitzer Prize.

Lichtblau's new book, Bush's Law: The Remaking of American Justice, lays out how he got that story and how the White House tried to squelch it. The story only increased the enmity of the government's law enforcement agencies towards Lichtblau. Once he had fans in the Justice Department, so much so that he was even invited to private, no-press-allowed pickup games of basketball with Attorney General John Ashcroft.

But after his front-page story on the FBI's monitoring of antiwar groups in 2003, his press pass at the Justice Department suddenly stopped working and an internal memo was sent to all of the FBI's field offices, instructing officials to freeze him out.

Eric, welcome to the show.
ERIC LICHTBLAU:
Oh, thanks for having me.
BROOKE GLADSTONE:
So here you have this really lousy relationship with the Justice Department and you lay out the tale of getting extremely vague tips about what turned out to be the NSA warrantless wiretapping program. And you suggest that the vagueness and the secrecy of your source, your unnamed source, was, in fact, [LAUGHS] inspired by All the President's Men's depiction of Deep Throat.
ERIC LICHTBLAU:
[LAUGHS] Right, like the famous credo from All the President's Men, you know, follow the money. They had seen that a few times and thought that they could just sort of tell reporters to go after a hot story and the reporters would ultimately get the story.

It doesn't always work that way. Sources were describing programs that perhaps they only saw a sliver of and did not know the full picture. And a lot of times we were just sort of left scratching our heads, trying to figure out what we were really looking at here.
BROOKE GLADSTONE:
So it's 2002. You're at The New York Times and in the bureau you're seated across from fellow reporter James Risen. And the person who sat you there said that they were sorry.
[LAUGHTER]
ERIC LICHTBLAU:
Jim can be a little difficult to get along with, and he prides himself on that. That's part of his mystique.
BROOKE GLADSTONE:
You guys realized that you were, as you say, both pulling on different strands in the same ball of yarn. He was working one-half of the NSA warrantless wiretapping story and you were working the other half.
ERIC LICHTBLAU:
Right. Jim's focus has always been on covering the CIA and other intelligence agencies. Mine has always been on the Justice Department, domestic side. So we were hearing about different ends of this program from our respective sources, not realizing for quite a while, really, that we were hearing about nervousness emanating from the same program. And it took us a while to put that together.

I had really run into a dead end, essentially, and wasn't sure where to turn. Jim put some of the pieces of the puzzle together before I did, as he likes to point out to me endlessly, and takes credit for whenever we are together.

We then essentially joined forces on this and we realized that there was a story, and the story led up the road to Fort Meade at the National Security Agency. And Jim went to the administration to tell them what we knew, and that led to a prolonged series of meetings with the administration urging the newspaper not to run the story.

BROOKE GLADSTONE:
The administration's first line of attack seems to be, look, there's no story here for you. These programs are entirely legal. All the experts within the administration seem to agree. Congress had been briefed. There were safeguards in place to prevent abuse. It all turned out to be wrong.
ERIC LICHTBLAU:
Right. The thrust of their arguments from the beginning was that there was never any doubt about the legality of this program, so why run it - that to run a story would simply be outing a vital national security program that had proven essential to saving American lives. And look, that's a powerful and persuasive argument, if true, that any editor is going to listen to two and three times.
BROOKE GLADSTONE:
Is that why the paper decided not to run the story for more than a year?

ERIC LICHTBLAU:
Yeah, essentially. You know, we had heard from early on in our reporting that there were, in fact, concerns about the legality of the program, that there was, in fact, resistance within the administration. But those are difficult things to prove, and the editors decided at that early go-round that the National Security argument would win out.
BROOKE GLADSTONE:
Was that supposed to be indefinitely or until new things came to light?
ERIC LICHTBLAU:
More or less indefinitely. I mean, I was not doing any reporting on it at that point. Jim was not doing any reporting on it. In fact, he went off on sabbatical to write his book.
BROOKE GLADSTONE:
And you went back to reporting other stories, including covering debates in Congress over whether to renew the Patriot Act. Was it hard for you reporting on this debate, knowing that this 800-pound gorilla that was on the shelf could have changed the debate so drastically?
ERIC LICHTBLAU:
Yeah, it was frustrating. The Patriot Act was one of the biggest issues before Congress. That went to the question of presidential power and checks and balances and how you go about fighting the war on terror. And here was this enormous secret that really went to the heart of what was being debated so publicly by Congress.
BROOKE GLADSTONE:
And so with the NSA story all but officially dead, James Risen invites you over to his house and shows you a chapter of his book.
ERIC LICHTBLAU:
[LAUGHS] He did. He called me over one night and sat me down at his computer and said, hey, take a look at this. There was a working chapter, with the title of The Program, about the NSA program. And I read through it and just kind of sat there silently for a while.

Jim talked to the editors at The New York Times to let them know that he was thinking about putting it in his book, and the editors agreed to revisit the whole question of whether or not the story should be published in the newspaper in the first place.

It became even clearer that there were deep, deep legal concerns within the administration about the NSA program. We had a pretty good idea of that a year earlier. That became crystal clear in our reporting in 2005.

And the editors decided that the reasons to publish now clearly outweighed the reasons not to publish, given that you had a program that some members of the administration believed might be illegal.
BROOKE GLADSTONE:
And then The New York Times learned that the White House was looking into seeking an injunction against The Times, prepublication. This was all Pentagon Papers style. How did The Times react?
ERIC LICHTBLAU:
Yeah. The paper had all but decided to publish the story at this point. This was in December of 2005. And then I happened to hear that the administration had considered using a Pentagon Papers-style injunction, as it had done in 1971 to try and stop publication of the NSA story.

That was really a bombshell that quickly helped push the paper to publish the story and to publish it on our website the night before we published it. And we ended up losing the scoop, as it were, because most of our competitors were able to match it. But it was ensured that there could be no injunction to stop the presses.

BROOKE GLADSTONE:
So after the story ran, you were blasted on the right for running it at all, that blood would be on The New York Times' hands, they said, if a terrorist attack occurred. And the left attacked you for holding the story for 14 months and possibly assisting George W. Bush's reelection.
ERIC LICHTBLAU:
[LAUGHS] Every appearance we made was, you know, well, why didn't you run the story, and would this have affected the election? You know, I would leave that to others to decide, but I think it just shows the sensitivity of the story that we got blasted from every corner.

I think that time has borne out the decision that the editors made in going ahead with publication. I mean, there's been a serious, serious debate over the last two and a half years over issues of the president's wartime authority, Constitutional powers, separation of powers. This is a debate that we never would have had had the program itself not been disclosed. You hear very few people charging these days that the story should not have run.
BROOKE GLADSTONE:
Thank you so much, Eric.
ERIC LICHTBLAU:
Oh, well, thanks for having me. It's been a pleasure.
BROOKE GLADSTONE:
Eric Lichtblau covers the Justice Department for The New York Times. His new book is called Bush's Law: The Remaking of American Justice.