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The Remaking of American Journalism By: Jeff Breinholt
FrontPageMagazine.com | Tuesday, April 22, 2008

Imagine if you started with the hypothesis that the New York Times is looking to sell papers and win journalism awards by making stuff up, despite the fact that that there is no indication this is actually happening. Now, let’s say that, as part of developing this hypothesis, you approach the Times and demand access to all of its reporters, all of their notes, and all of their confidential sources. Let’s say that you also ask for a pass that would allow you the run of the Times’ news bureaus. Not surprisingly, the Times rejects your requests, citing the need for confidentiality and the freedom of the press. This does not deter you.

Suddenly, the Jason Blair scandal hits. You seize on the scandal to show that the Times is corrupt and fearful of accountability and of the truth getting out. You point to its refusal to open all of its confidential records to you, saying it should not be trusted to report the full results of their internal investigation of the Blair scandal. You now find that few at the Times are willing to talk to you, because they no longer trust you to report fairly. Your mind, it seems, is already made up, and you are looking for a quick hit. They fear that you are more committed to ruining the reputation of the newspaper than anything else. Because you manage to get some information that the Times considers confidential, you continue to write. Every closed door is more proof that the Times has something to hide. You keep at it.

The Times is not pleased. It hires lawyers and does an investigation to determine whether its staff is leaking to you, as it fears the disclosure of confidential sources will negatively impact its ability to practice responsible journalism. There, you say, this clearly shows that the Times is hiding things and afraid of the truth.

You keep publishing, and then gather your stories and publish a book, entitled Times Journalism: The Remaking of American Journalism, which claims that at least one friend of yours (who you conveniently refuse to name) has been fired by the Times merely because he/she is acquainted with you. Imagine how the New York Times would go after the book.

Of course, this did not really happen. In the real world, the relevant parties are different. The entity being investigated is the U.S. Department of Justice and the New York Times is the entity doing the investigation, through a reporter named Eric Lichtblau. Apart from that, the facts are largely the same: a venerable institution, involved in important work that requires confidentiality, and an investigator hell-bent on showing that it has something to hide, as if there were no legitimate explanation for its secrecy.

The result is Bush’s Law: The Remaking of American Justice. That the Department of Justice reacted the very same way to Lichtblau that the Times surely would in my hypothetical scenario suggests that there may be a less cynical explanation than that the Justice Department is hopelessly corrupt. Where its work is sensitive and requires confidentiality and the element of surprise, investigators who attempt to upend these elements are bound to be distrusted.

So we have this: a reporter for the LA Times covering the Justice beat becomes convinced that the law enforcement approach to terrorism after 9/11 is wrong and that it amounts to a Watergate-like scandal. The terrorist attacks are, to him, a great opportunity to follow in the footsteps of his heroes Bob Woodward and Carl Bernstein and to sniff out a scandal of constitutional proportions. It’s just a matter of finding the abuses and writing about them. As a young college student, the reporter dreamt of someday working for the venerable New York Times. When the opportunity arise, he jumps at it.

To his new editors, this new hire is slightly out of control, which makes them worry about green-lighting some of his articles. He seems to believe that the role of a beat reporter is to dig up scandal on the agency he covers, rather than report the news. The Inspector General—a rich vein of information about Justice scandals large and small—is his most reliable source of information. To this reporter, no story is too far-fetched to pursue, nor any truth too damaging to reveal.

Bush’s Law is a blow-by-blow account of all the obnoxious things Lichtblau claims to have seen as he walked the Halls of Justice (where, incidentally he was given an unescorted badge, something I doubt I could finagle out of the Times). This is his story, complete with Deep Throat-like sources, editorial perfidy, government villains, and a lot of heavy breathing and running around. A great adventure. In the wrong hands, it becomes a comedy. As we all know, the government did not crumble. The President did not resign. His staff did not go to jail. Watergate this is not, and I know something about that historical legacy, as well as the current inhabitants of the federal law enforcement epicenter at 10th and Pennsylvania NW. The analogy is not even close.

Put yourself in the shoes of Lichtblau. One day, Attorney General John Ashcroft announces the arrest of a Yemeni religious leader, who had sent a fundraiser to the U.S. and bragged on tape that he was capable of getting $20 million to Al Qaida. Alas, this was the moment the young narrator loses his innocence. Why? Because in his mind the Attorney General must have overstated the facts of the case. Surely, there is a scandal there, just waiting to be told. Was the person whose indictment John Ashcroft described innocent? Hardly. In fact, the tapes quoted by the Attorney General are played in court, and Sheik Al-Moayad is ultimately convicted by a jury of attempting to provide material support to Al Qaida and Hamas, and sentenced to 75 years. If this is a case to become radicalized over, it is a strange choice.

Of course, once you become so radicalized that your fellow journalists describe you as a “rumpled Washington attack dog hounding the Attorney General,” your work tends to suffer, especially come book time. Bush’s Law opens with a dramatic story involving a prosecutor and an FBI agent who fly to Jordan to determine for themselves whether a piece of evidence they have–in a case Lichtblau oddly describes as “the first terrorism prosecution after September 11”—was indeed a depiction of a U.S. military base allegedly targeted for attack. This case, Lichtblau claims, showed how quickly the Department of Justice had gone off the rails. It seems that prosecutors around the country were told that their primary mission was to prevent future terrorist attacks, and that they should be aggressive in their charging decisions. No revelation there. This was Bobby Kennedy’s Justice Department, circa 1962, revisited. They got busy.

A couple of Arabs in Detroit are interviewed after 9/11, and found with false identification, airport security badges, and some suspicious drawings. A Detroit prosecutor convinces the people at Main Justice to approve this tough case even though the defendants’ plans remain a mystery, and they even write the prosecutor a congratulatory e-mail for the good work in putting the case together. This is what leads to the trip to Jordan.

Amazingly, the case is won, but not before the prosecutor has a falling out with Main Justice and becomes so desperate for a victory that he violates some basic rules of law enforcement fairness. The prosecution has cheated by burying exculpatory evidence. This is no small thing. The Department of Justice does what one would expect of an institution committed to the rule of law. It runs an internal investigation that ends with the Department of Justice refusing to pursue the case and instead seeking to indict the prosecutor. Though the prosecutor is ultimately acquitted, the Department of Justice has cleaned house, just like the New York Times did after the Jason Blair scandal. Does Lichtblau give it credit for doing the right thing after this painful episode? Hardly. Instead, he gives the aggrieved prosecutor a platform to argue that the Department of Justice was out to get him. It should be noted that that’s very much what Blair claimed, after he was fired by the Times. Did anyone question whether investigative journalism should continue to exist in the aftermath of the Blair scandal?

Who was right in Detroit? Perhaps a righteous case was foresworn, in the interests of doing the right thing, since the prosecutor violated the public trust. This explanation is hardly sinister. The story is told by Lichtblau in such a way as to suggest that Justice should not have done what it did. Imagine if the New York Times did nothing about their own bad apples. When it did, did anyone claim that the saga showed that the Times is dangerously trying to remake American journalism, by fostering an environment ripe for fabulists? Lichtblau’s treatment of the Detroit cases suggests a reporter with an axe to grind. Might he have perhaps talked to the particular Main Justice attorney who wrote the congratulatory e-mail when the case was indicted to get his perspective? I know for certain that this was not even tried. I wrote the e-mail. Why bother? The reporter already had his one-sided story, and was eager to run with it.

It goes on from there. Relying on the words of an aggrieved INS Commissioner who felt it was unfair to follow the President’s decision to interview all Arab aliens and arrest those who were out of status, Lichtblau claims that it was unconstitutional and wrong-headed, as opposed to a decision made over the objection of the head of an agency that had obviously gotten too complacent and immigrant-oriented. How to explain widespread bipartisan Congressional support for the USA PATRIOT Act? Lichtblau claims that the Democrats did not have time to read it, which is always a howler. He leaves the impression that the PATRIOT Act was ultimately repealed, which it was not; but this is unsurprising coming from someone who found the PATRIOT Act coverage so deadly boring that he begged to be pulled off it. He tries to make much of the fact that the Pentagon was so worried about violent attacks on its domestic recruiting installations (which we now know was legitimate) that it monitored people who might be planning violence, despite the fact that this was hardly a scandal. “It was a scoop I wish I’d had myself,” Lichtblau says. He even attacks the Attorney General for his truthful testimony before the 9/11 Commission, suggesting that he should have taken care not to declassify and detail the policies that were enacted during the Clinton Administration for fear of making them feel bad.

What is amazing about Bush’s Law is how many conclusions Lichtblau gets wrong from facts that are undisputed. Material witness warrants were not abused, nor is it unconstitutional for the FBI to seize property in an abandoned apartment (“The Constitution’s gone out the damn window,” Lichtblau asserts). The request for citizen tips was designed to fill out the picture of the “spaces between the cases” in perilous times, and Justice never apologized for that initiative. This ethos may have stopped Richard Reid from blowing up an airliner over the Atlantic. The John Walker Lindh case (which, incidentally, was resolved by guilty plea on the day the Detroit indictment – allegedly “the first terrorism case after 9/11” – was announced) is not widely recognized as a scandal. Jose Padilla was convicted by a jury of his peers, and it is unclear what Lichtblau means when he says that the “collapse” of the Padilla case “was a turning point in the coverage for me.” A Cleveland truck driver who schemed to topple the Brooklyn Bridge was not, as Lichtblau asserts, caught because of the NSA surveillance program. It is untrue that no one connected to Al Barakat had been convicted. A wrongly jailed Oregon lawyer named Brandon Mayfield has styled himself a Mandela, though a couple of days in lock-up—until the FBI cleared up the forensic confusion that involved even the court’s appointed fingerprint expert, selected by the defense—hardly compares with 30 years on Robben Island.

Then there are the inconsistencies. One of Lichtblau’s sources at Justice, David Kris, is described as being a stickler for criminal procedure, but he is quoted earlier in the book authorizing a warrantless arrest, which Lichtblau excuses as a benign product of extreme exhaustion. Apparently it’s good strategy to be Lichtblau’s source, since it makes your mistakes justifiable.

Lichtblau complains that the Department of Justice’s abuses got little attention in the media except a few write-ups in legal journals. Go figure. Perhaps it was because there were not many reporters on a crusade, unlike Lichtblau, who claimed a story he wrote entitled “FBI Scrutinized Antiwar Rallies” was a “balanced piece.” No wonder Lichtblau found himself distrusted, and held back by his editors. He complains that, “our legions of critics tell us [we are] constantly in pursuit not of truth, but something more perverse, something more self-serving.” Well, if the shoe fits….

There is also the problem of what Lichtblau chooses to omit. How about over 160 people charged with terrorism and terrorist financing after 9/11, and only 16 acquittals so far? Lichtblau inexplicably claims that, whereas federal prosecutors win nearly all the cases they bring, now “for every much trumpeted conviction, there was an embarrassing defeat at the hands of a skeptical jury.” He’s off. By my estimate, there is one acquittal for every ten people charged with terrorism, which makes the terrorism conviction rate about the same as that for all federal crimes. Critics say that you cannot count certain cases as terrorism-related, including undercover stings in which the would-be terrorist discussed their plans with people who they did not realize were government agents. I say terrorism cases are easy to identify: those prosecutions that involve crimes that are classified as “federal crimes of terrorism.” Unless the facts do not matter, then these are, by definition, terrorism cases.

To be fair, were there some Justice Department missteps after 9/11? Surely. The hospital room visit to renew the NSA surveillance program was not one of the government’s finest hours (though it might have been for the Department of Justice), and the U.S. Attorney firings were truly an outrage. Bob Mueller has apologized more than he probably needed to for the lack of oversight over the FBI’s use of National Security Letters. How many institutions with 90,000 employees never make a mistake? The New York Times is not that big, and it still had its Jason Blair.

Do these incidents mean that Justice is afraid of oversight? That DOJ has an irrational distrust of reporters? That theory would not explain how many of Lichtblau’s fellow journalists are among my best friends. I trust them, especially those who don’t make such obvious mistakes about who the bad guys are. It is not as if we are afraid to talk to journalists. Does Lichtblau need my phone number? That should not be too hard – he can get it from his partner at the Times, or from his friend Judy Miller. Of course, after reading Bush’s Law, when Lichtblau calls, I will probably not be inclined to talk to him.

Might the chill that Lichtblau felt have been based not on a giant conspiracy against him, but rather on law enforcement officials not trusting him to get it right? If that’s your job, how do explain a book that has Sheik Rahman helping orchestrate the bombing of the World Trade Center in 2003 (an event that never happened), and more than one reference to a U.S. Attorney named “David Ogden” (who does not exist)? Lichtblau wrongly describes an Abu Nidal Organization operative named Zein Isa as being part of Hamas. He reports that one of his sources told him that John Ashcroft was about to be indicted. If that happened, I must have missed it.

Perhaps more perniciously, there is no way to check much of what Lichtblau recounts. There is plenty of rumor and innuendo, and he likes to lead off damaging revelations with words such as “Some people thought….” “Many people worried that ….” He claims that “For John Ashcroft, a public stoning was almost emboldening.” Really, Eric? Where might that be documented? A footnote here might have helped. He claims that an American flag hanging at an INS detention facility in New York became covered with the blood of the detainees who were being beaten there. No attribution, no citation. Some of his revelations have no point. So an FBI computer specialist was caught in flagrante dilecto in the parking lot. Even if true, does that mean the FBI is mismanaged?

Surely there is no way to know how Lichtblau would react to a claim that he cannot be trusted merely because he is part of an organization that once included Jason Blair? Wait, there is, in Bush’s Law. Lichtblau makes much of the fact that Senator Orrin Hatch publicly noted that Lichtblau collaborated with Blair on some stories. To him, this allegation is rank McCarthyism, and guilt by association. Hatch ultimately apologized to Lichtblau and gave him a hug. Lichtblau is not likely to be so kind to those who work at Department of Justice and were aggrieved by his coverage. Still, we do know how offended he gets when isolated instances of misconduct by individual Times employees are trotted out by its critics.

Apparently in an attempt to add some intrigue to the story and maybe sell a few books, Lichtblau drops a cryptic reference to how at least one friend was drummed out of the government for the crime of being acquainted with him. He does not say who this person is, so we have no way of checking the accuracy of the claim. Instead, it hangs there, immune from rebuttal. Perhaps this “friend” committed a crime by telling Lichtblau about the classified surveillance program that caused the New York Times so much consternation in deciding whether to publish, and which curiously resulted in a Pulitzer Prize, despite the fact that this publication decision gave many people the creeps. If so, merely knowing Lichtblau would not have been the reason for this friend’s departure from government, as he claims. History will never know.

The double standard is on full display near the end of Bush’s Law, in which the author says “the use of anonymous background sources and the lack of transparency that comes with it are the price we all pay for the recent crackdown on aggressive reporting.” Oh, really? Some would say it is a product of journalism that has abandoned its standards, and that maligns others for secrecy it has no trouble practicing itself. I am not quite so condemning, because I am a consumer of books and articles that contain unattributed sources, and would hate to see them dry up. Still, I am not so quick to condemn people for maintaining confidences.

I have some friendly advice for the author of Bush’s Law. Read a little history. If you are so fascinated by Watergate, I can loan you some of books from my collection, and point you to some of my articles. There are still plenty of mysteries out there, like who was responsible for the 18 ½ minute gap, and who provided Mark Felt with much of the information unavailable to the FBI that made its way to Bob Woodward. If you think that what has happened in America since 9/11 approaches the style of abuses of 1972, you need to read some more.

The views in this article are not those of the Department of Justice.

Jeff Breinholt headed the U.S. Department of Justice's terrorist financing criminal enforcement program after 9/11. He recently completed a fellowship with the International Assessment and Strategy Center, where he was responsible for promoting the role of American lawyers in national security through book reviews and public commentary. He is a frequent author and lecturer on law enforcement, intelligence and human rights.

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