Sourced to current and former legal and counterterrorism officials in the United States government, the New York Times published a story on Sunday on the killing of US-born Muslim cleric Anwar al-Awlaki, who was targeted by a CIA drone without charge or trial on September 30, 2011.
Much of the material in the story from anonymous individuals could be considered sensitive or classified government information. These selective disclosures, which the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) condemned in a statement, functioned as propaganda. Statements and revelations were made to the Times that would be hard to confirm because the drone programs are shrouded in immense secrecy. making it impossible to contest claims about the legality of the killing or even whether Al-Awlaki was a “senior operator” of Al Qaeda and fit the criteria of someone who could be executed from the sky.
Scott Shane, one of the journalists for the Times who worked on the story, appeared on “Democracy Now!” yesterday and reacted to the critique from the ACLU and CCR:
SCOTT SHANE: I should say that we at The New York Times, we’re reporters: We’re all for transparency. And one thing that that statement from the ACLU and the Center for Constitutional Rights failed to mention was that The New York Times also has sued the government to try to get the legal opinions justifying Anwar al-Awlaki’s death, but also all the targeting, all the legal opinions on targeted killings. We’ve lost at the district court level, and that case is now on appeal, but we would like obviously much greater transparency. And part of the reason we do a lot of reporting and put a long story in the paper like that is to shed as much light as we can on the circumstances of his death… [emphasis added]
This fact is conspicuously missing from the story. Had it appeared and had the Times used the lawsuit to give some context to the statements being made by anonymous sources aware of legal discussions and counterterrorism operations that led to Al-Awlaki’s death, the contents of the story would have been less problematic.
SCOTT SHANE: …I think—you know, I mean, people can certainly read the ACLU press release and draw their own conclusion, but, you know, in essence, our article was saying that while there was a lengthy process of sort of legal study and debate inside the administration before they decided or justified the killing of Anwar al-Awlaki, they had in fact decided they couldn’t kill, could not target—that is, Samir Khan, because he was a propagandist and not an actual plotter. But he was killed anyway. And some people in the administration, I think, you know, found that that sort of cast a shadow on the long legal discussion about who you could kill and who you couldn’t kill, because they had killed both of them. And I think, you know, I can say that I—that, in general, across the government, the death of the 16-year-old, who, again, was not, as far as anyone knows, associated with terrorism, is seen as a disastrous mistake. And certainly the article pointed that out…
The story of how Samir Khan was not supposed to be targeted but ended up dying when he shouldn’t have and how that “cast a shadow on the long legal discussion about who you could kill and who you couldn’t kill” would have been a great story, but that was not a focus of this story on Anwar al-Awlaki at all. Khan was mentioned explicitly nine times while Anwar al-Awlaki was mentioned explicitly more than sixty times. How Abdulrahman al-Awlaki’s death was a “disastrous mistake” would have made for a great story too, but that point was generalized and not detailed.
SCOTT SHANE: So, you know, I think that press release is a little, perhaps, imaginative in suggesting that the story was defending the administration. In actual fact, the White House wouldn’t talk to us either on or off the record, and we got the information that we could, you know, where we could get it. You know, as the story says, it raises questions about the claims of the administration that this targeted killing program has been precise and very careful in who it targets and who it kills. [emphasis added]
The statements from counterterrorism officials likely came from people with connections to the CIA or in agencies with connections to the CIA. The statements from legal officials likely came from people with connections to the Justice Department or in offices with connections to the Justice Department. Since both the Justice Department and the CIA have fought the release of documents that would show the legal basis for targeted killings or the criteria for targeting and killing terror suspects abroad, it is not “imaginative” to suggest the story is valuable to the government.
The officials’ statements are uncontested in the sense that no person from, for example, the ACLU and CCR’s lawsuit challenging the killing of Anwar al-Awlaki, his son, Abdulrahman al-Awlaki and Samir Khan is quoted in the story. No human rights or international law scholar is quoted to affirm or dispute the legal conclusions of the lawyers involved in drawing up the legal justification for Al-Awlaki’s killing.
One may argue that this should not be an issue, but, as ProPublica documents, officials from the Obama administration have been making “drone claims” since 2009 while at the same time fighting FOIA lawsuits in court where they deny the existence of the programs or that anyone from the administration has publicly acknowledged the CIA has a drone program. In effect, the Times enabled the Obama administration to keep playing its secrecy games by allowing many of these statements from anonymous officials to be accepted at face value.
Additionally, the story was made even more remarkable by the fact that the Times public editor Margaret Sullivan simultaneously published a column titled, “The Danger of Suppressing the Leaks,” which highlighted the value of “leaks” in journalism and contemplated a “world without leaks.”
She wrote, the world would not know about prisoner abuse at Abu Ghraib, “the brutal treatment of terror suspects at United States government ‘black sites’ (it would seem her paper won’t let her use the word “torture”), the drone programs expanded under Obama or the administration of President George W. Bush’s use of warrantless wiretapping on Americans. And she added the world may be headed to one without leaks because, “Since 9/11, leakers and whistleblowers have become an increasingly endangered species. Some, like the former CIA official John Kiriakou, have gone to jail. Another, Pfc. Bradley Manning, is charged with ‘aiding the enemy’ for the masses of classified information he gave to Julian Assange’s WikiLeaks. He could face life in prison.”
Sullivan defined “leaks” as “the secret government information slipped to the press.” She also noted leaks, “which have many motivations, not all altruistic,” are considered by journalists to be “vital to news gathering.”
Declan Walsh, a reporter who wrote many WikiLeaks-based stories for The Guardian before coming to The Times, calls leaks “the unfiltered lifeblood of investigative journalism.” He wrote in an e-mail from his post in Pakistan: “They may come from difficult, even compromised sources, be ridden with impurities and require careful handling to produce an accurate story. None of that reduces their importance to journalism.”
Government officials, as Sullivan suggested, may be less willing to “leak” now that government agencies are applying measures that Michael Leiter of the US National Counterterrorism Center said are “intended to have a deterrent effect” because we cannot have “willy-nilly leaking of sensitive information.”
Shane told Sullivan, “There’s definitely a chilling effect…Government officials who might otherwise discuss sensitive topics will refer to” cases where the Obama administration has pursued “leakers” under the Espionage Act when “rebuffing a request for background information.” (Background information is when the official may be willing to talk about a subject but not have their statements published on the record with their name attached; the source would be generalized like “intelligence official.”)
What Sullivan neglected to address in her column is how US government officials might use press organizations to advance their agenda and how it is up to journalists to not accept “leaks” at face value, especially when they are fully aware of the fact that the subject of the “leaks” may involve controversies, corruption, coverups, malfeasance, scandals, or wrongdoing.
“Secret government information” was shared in significant quantities for the Times’ Al-Awlaki story, but, for what purpose? The Times knows it published a major story on the Obama administration’s secret kill list last year. That story along with a story on US cyber warfare against Iran created hysteria on Capitol Hill where senators like Sen. Dianne Feinstein (D-CA) and representatives like Rep. Mike Rogers (R-MI) were pushing for the passage of anti-leaks proposals that would further discourage government employees in agencies from talking to the press.
Times executive editor Jill Abramson in a speech given to journalists at the Investigative Reporters and Editors annual conference in 2012, defended the Times‘ decision to publish a
The chilling effect of leaks prosecutions threatens to rob the public of vital information. Sources fear legal retribution for simply talking to reporters. Anyone examining the case of Thomas Drake, a whistleblower who was prosecuted, and what his family went through during his ultimately botched prosecution would think twice before ever talking to a reporter. Reporters fear being subpoenaed in these cases and possibly prosecuted themselves. Several reporters who have covered national security in Washington for decades tell me that the environment has never been tougher or information harder to dislodge. One Times reporter the environment in Washington has never been more hostile to reporting.
Given all that, reporters at a prominent establishment newspaper like the Times must wonder why a person is talking to them about a national security story when they do decide to talk. Are they simply moral and conscientious people who believe in openness? Do they just not fear reprisal for talking and think they will be able to get away with it? Or, is there some ulterior motive for speaking to a reporter, like a benefit they perceive from a story being produced? For example, maybe the “officials” talking think helping the story get produced will tamp down criticism. (It is doubtful they are talking because they believe in openness; if that got back to their superiors, they would surely face risks to their job, career and/or livelihood.)
In conclusion, not all “secret government information” is given to the Times or any other establishment news organization for the purpose of transparency or openness. Saying the publication is in service to transparency or openness does not mean such “information” is transformed into something more virtuous when it is published either.
Just as Sen. Feinstein took it upon herself to give Al-Awlaki a kind of posthumous mini-trial during CIA director John Brennan’s confirmation hearing, that is what the Times story also amounts to whether it was the intention of Shane or the other journalists involved. It is a posthumous opportunity for officials that had connections to the decision-making process, which led to Al-Awlaki’s death, to explain or defend their role. It is a chance to show that, though targeting Al-Awlaki could have been a dangerous expansion of executive authority, those involved managed aspects of the operation “appropriately” so it was not.
Unless statements from anonymous officials are questioned by the journalists receiving the statements or contested in the article, the statements become incontrovertible truth. That truth becomes conventional wisdom and it becomes harder for civil liberties or human rights organizations to publicly rally support for wrongful death cases or even lawsuits to force the release of records containing the secret law for targeting people abroad.
Scott Shane appeared on “Democracy Now!” with the Government Accountability Project’s Jesselyn Radack. For his appearance and discussion with Radack, see the segment below.