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A scoop deferred. I just don't know what to make of this:
Let's say it didn't take a full year to develop the additional reporting in the piece that the Times had a year ago. Let's say the book was coming out that was going to have the lion's share of the reported material Risen and Lichtblau had a year ago. So the White House was arguing that the piece should never be published, because it might harm counterterrorism efforts. (Presumably, there were not such restrictions on the book?). Well, now the story is out, and the only harm I see is to the White House's reputation, for doing all of this in secrecy.The Times said it agreed to remove information that administration officials said could be "useful" to terrorists and delayed publication for a year "to conduct additional reporting."
The paper offered no explanation to its readers about what had changed in the past year to warrant publication. It also did not disclose that the information is included in a forthcoming book, "State of War: The Secret History of the CIA and the Bush Administration," written by James Risen, the lead reporter on yesterday's story. The book will be published in mid-January, according to its publisher, Simon & Schuster.
The decision to withhold the article caused some friction within the Times' Washington bureau, according to people close to the paper. Some reporters and editors in New York and in the bureau, including Risen and co-writer Eric Lichtblau, had pushed for earlier publication, according to these people. One described the story's path to publication as difficult, with much discussion about whether it could have been published earlier.
In a statement yesterday, Times Executive Editor Bill Keller did not mention the book. He wrote that when the Times became aware that the NSA was conducting domestic wiretaps without warrants, "the Administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security."
Let's face it. It's hard to imagine that any real terrorists out there are not highly conscious of the likelihood of surveillance. Did bin Laden or Zawahiri or Mullah Omar read the NYT today and smack their forehead and say, Jesus Christ, they are on to me! All those calls from Minnesota, I thought nobody would be monitoring!
That's hard to imagine. Okay. Let's try to think of a more realistic example. Let's say there's some American-Yemeni guy in Buffalo who spent a few months in Pakistan and maybe even went into Afghanistan who calls his cousins in Yemen to chat about this and that. Does he think he's not being monitored by somebody over here? I can't believe after the Lackwanna cases and the Sami al Arian cases, etc. that pretty much everyone who had ever stepped foot in Afghanistan, anyone who would think to call anyone affiliated with an Islamic terrorist group or figure or telephone number is not highly conscious of the likelihood they are being monitored. Anyone seriously dangerous enough to be worried about would know to just assume they were being surveilled. They would at least have to presume they are being surveilled, right? (If they didn't, it doesn't seem like they would be that dangerous. Intent is one thing, capabilities another).
And they probably don't spend a lot of time worried about the civil liberties concerns of ordinary Americans and the fine details about US FISA courts. They probably assume that if the NSA isn't picking 'em up, the FBI is, and if the FBI isn't, the Egyptians or Israelis or somebody else are. (These are also people who would presumably be easy enough targets of FISA warrants, one might reasonably assume. In fact, it's hard to figure out anyone who would fall into the 500-US person batch NSA signals intelligence category who wouldn't more easily be authorized by a FISA court to be the subject of FBI surveillance.)
So it's hard to figure out just what is going on here, except these guys [e.g. the administration] try to do in secret what they can't get away with once it's publicly exposed. In other words, asking the Times not to publish was for the administration a matter of convenience, not national security. The Bush administration didn't want the bother to have to argue in public its belief that it had the legal right to authorize warrantless surveillance of US persons. Which is not a national security argument at all, it is an argument about executive privilege. Which brings us back to the question, why did the Times hold this for so long?
By asserting excessive powers, [former CIA general counsel Jeffrey] Smith said, President Bush may provoke a reaction from Congress and the courts that ultimately thwarts executive power.
"The president may wind up eroding the very powers he was seeking to exert," Mr. Smith said.
Update: One other point. Let's say in this NSA US Person information vaccuum the authorities found someone they are really worried about. Let's say just once, they get evidence of a crime or terrorist conspiracy. How is this stuff going to be used in court? Unlike FISA warrant surveillance, which I assume is legally admissable evidence, just how has the White House prosecuted or do they plan to prosecute someone who they get evidence of obtained from inadmissable, extra legal NSA surveillance - in a way that they can't admit in court? They can't. They can declare the person an enemy combatant and ultimately have to go to the Supreme Court over the very legal status of the accused in the case (is this why the Padilla case fell apart?). I guess they can extraordinarily render him to some place in secret (is this what happened with Hadmi?). But that extra legal judicial system is being challenged on so many fronts, it seems to have basically collapsed. Or they are going to have to figure out how to deal with him in the normal justice system, where one worries about things like evidence that is admissable in court. You can see that it's basically an unsustainable program. Or else it netted so few people who were legally prosecutable, that it's useless.