Decision to not report spying was unethical

T o those of us who love newspapering, it often seems that The New York Times has soared while the rest of the business sinks. Its circulation grows while everyone else’s shrinks, it buys while others look to sell, it lavishes money on news while budgets elsewhere shrivel, it strides into TV production, e-commerce and paid online services while others dawdle and fret.

But there’s The Times’ other side: the stumbles, the silences, the arrogance. The paper nurtures a cranked-up fabricator such as Jayson Blair even though his own editor declared him a menace. It needs a year of being shamed by other journalists to recant its credulous reporting on nonexistent Iraqi weapons that quelled public uncertainties about the war.

Now we learn that The Times, well before the 2004 elections, knew that President Bush had authorized warrantless electronic surveillance of people in the United States suspected of ties to terrorism, a program that was very likely unlawful. At any one time some 500 people, among them U.S. citizens, were having their overseas phone calls and e-mails monitored without legal sanction.

The National Security Agency program, which a small number of congressional Democrats were told about, began in 2002 and circumvented the Foreign Intelligence Surveillance Court. The FISC is a secret tribunal created under a landmark 1978 law enacted to halt NSA spying at home while providing expedited approvals for legitimate, security-related eavesdropping. The court approves nearly all requests, and can even issue warrants retroactively if the surveillance was urgently needed.

One implication of The Times report was that the FISC was not just being circumvented but duped, since evidence presented to the court for the warrants it did approve might well have been gathered from illegal taps. Outraged by that possibility, one FISC judge quit after The Times story appeared, and remaining members are demanding explanations.

All in all, a major story of unquestionable public importance. So why did The Times wait? Its explanation: “After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting.”

Sounds praiseworthy, if you believe that The Times was fact-checking and re-reporting the story for 14 months, which nobody smart enough to read the paper is stupid enough to buy.

As it happens, one of the authors of The Times story has included the illegal surveillance in a book he wrote that is coming out next month. Mindful that the paper was about to be scooped on its own reporting, The Times finally ran the story, rejecting entreaties from Bush, who summoned executive editor Bill Keller and publisher Arthur Sulzberger to the White House on Dec. 6 to try to change their minds.

So why did The New York Times wait? Its explanation: “The newspaper delayed publication for a year to conduct additional reporting.”

Was the story truly a danger or simply an embarrassment? Didn’t terrorist conspirators already know they are likely surveillance targets? Were any of them dumb enough to believe the meager safeguards this eavesdropping subverted were actually shielding them from detection? As Daniel Benjamin, a five-year veteran of the National Security Council staff, wrote: “The Times revelation made the Bush administration angry, but it did not tell terrorists anything about our spying on them that they haven’t long assumed.”

Besides, what about the harm from nonreporting? One of the more durable fallacies of ethical thought in journalism is the notion that doing right means holding back, that wrong is averted by leaving things out, reporting less or reporting nothing. When in doubt, kill the quote, hold the story – that’s the ethical choice. But silence isn’t innocent. It has consequences. In this case, it protected those within the government who believe that the law is a nuisance, that they don’t have to play by the rules, by any rules, even their own.

Didn’t the delay do harm? We know that thousands of people were subject to governmental intrusion that officials thought couldn’t be justified even under a highly permissive set of laws. We also know that because knowledge of this illegality was kept confined to a small circle of initiates, the political system’s response was postponed more than a year, and its ability to correct a serious abuse of power was thwarted.

I don’t know what The Times’ brass was thinking. Maybe they just lost their nerve. Maybe they didn’t want to tangle with a fiercely combative White House right before an election. But I do believe that withholding accurate information of great public importance is the most serious action any news organization can take. The reproach – “You knew and you didn’t tell us?” – reflects a fundamental professional betrayal.

The Times blew this one, and would do well to recall George Orwell’s admonition from 1946, “To see what is in front of one’s nose needs a constant struggle.”