Via Josh Marshall, Jonathan Alter discloses that President Bush called New York Times executive editor Bill Keller and publisher Arthur Sulzberger to the White House and attempted to persuade them not to run the blockbuster story that the administration authorized a vast, lawless expansion of the government's surveillance powers. Alter gets this exactly right:
Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.
Two major questions remain, however. First, are Marshall and Kevin Drum correct that this program involves some sort of new technology that isn't covered by the FISA law? And second, why did the Times sit on this story for a full year? Drum, who previously wondered about this, now points to a statement released by Keller suggesting that the Times "satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record." This is one of several pieces of evidence he cites in support of the conclusion that new technology involved was responsible for the delay.
However, there's no reason to think that the Times couldn't have rewritten the story in a manner that would have protected American intelligence capabilities a year ago. Isn't it possible that the Times held off partly for political reasons? A year ago, President Bush had just been re-elected in large part due to his claims that he would do a better job of protecting the country from terrorism. Times journalists who fear accusations of media bias might have hesitated to release such an explosive story at that time. But with President Bush increasingly unpopular and under fire from liberals and conservatives alike, the Times overcame its doubts and decided put the story out.
This is part of a larger story I hope to tell in my dissertation about how presidential scandals are driven in large part by approval ratings. Media outlets and politicians appear to time their rhetoric for maximum impact. And in this case, the environment for creating a scandal is far more favorable today than it was a year ago. Similarly, Democratic criticism of the program is far more harsh than it would have been as recently as 2004 -- and that's because they don't fear the repercussions of questioning Bush's anti-terror policies nearly as much as they once did.
Update 12/20: Soon after posting this, an Atrios link pointed me to an LA Times story stating that "The New York Times first debated publishing a story about secret eavesdropping on Americans as early as last fall, before the 2004 presidential election." The Times article said this about the timing of the paper's initial reporting:
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
It's now clear that this statement was misleading. Many people (including me) read "a year" literally, and inferred that the Times first uncovered the program in December 2004. But if the Times knew about the program before the election it lends even more credence to the theory presented above. When is a newspaper most sensitive about charges of bias? Immediately before an important election. It's likely that the risk of facing charges of trying to throw the election to Kerry was part of what deterred the Times.