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

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.

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.