NEWS WAR, Part 2
Secrets, Sources & Spin
And Arun Rath
REPORTED AND CO-PRODUCED BY
and Lowell Bergman
& Seth Bomse
ANNOUNCER: Tonight on FRONTLINE:
- The job of a reporter is to be the curmudgeon who raises questions that nobody else wants to raise. That's what the best reporters try to do.
ANNOUNCER: Once upon a time, they were thought of as heroes, but today the entire news industry is in crisis.
- The public has a terrific disdain for the press.
- We have a press that is at war with an administration while our country is at war against merciless enemies.
- For 30 or more years, there'd been an assumption about the government and the press, and suddenly, in the last couple of years, that's changed.
ANNOUNCER: In a four-part special series, FRONTLINE reporter Lowell Bergman looks at the challenges facing journalists today-
LOWELL BERGMAN, Correspondent: Would you to go jail to protect your source?
ANNOUNCER: -the war between the White House and the press-
-the president of the United States saying, ≥If you publish this story, you will have blood on your hands.≤
ANNOUNCER: -the explosion of new and emerging media-
- Do you ever feel like the 6:00 o'clock news just ain't cutting it for you?
- You don't see anybody between 20 and 30 getting their news from the evening news, you see them getting it on line.
ANNOUNCER: -and the economic realities of today's news business.
- You have to make more every year to keep the shareholders happy.
ANNOUNCER: How did we get here?
- We're judging journalism by the same standards that we apply to entertainment. That may be one of the greatest tragedies in the history of American journalism.
ANNOUNCER: And what is at stake.
- There's a dire need for institutions that tell the truth, that pursue the truth, and that chase it at all costs.
ANNOUNCER: Tonight, part two of News War, a FRONTLINE special series.
PROTESTER: We're going to start today, much to the chagrin of the people across the street, with the Pledge of Allegiance.
PROTESTERS: I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all!
NARRATOR: Early last July, a group of protesters gathered outside The New York Times office building in mid-town Manhattan.
PROTESTER: It's no longer The New York Times, it's the Al Jazeera Times!
New York Times, June 23, 2006: BANK DATA SIFTED IN SECRET BY U.S. TO BLOCK TERROR
NARRATOR: They were protesting the paper's revelation that the government was secretly monitoring the worldwide money transfer network known as SWIFT to track terrorist financing.
PROTESTERS: Traitor! Traitor! Traitor!
NARRATOR: Fallout from the Times story had been roiling through the media for weeks.
NARRATOR: ["Fox News Sunday," June 25, 2006] This is a U.S. government secret program in a time of war, willfully exposed for no good reason by The New York Times.
RUSH LIMBAUGH, Radio Talk Show Host: [June 27, 2006] I think The New York Times should start running ads, and get some terror members and have them say, "I saved my sleeper cell thanks to The New York Times."
COMMENTATOR: [June 23, 2006] Pinch Sulzberger and Bill Keller ought to be frog-marched out of the New York Times building-
PROTESTERS: It's time to stop The Times! It's time to stop The Times!
BILL KELLER, Exec. Editor, The New York Times: Clearly, when we talked about the SWIFT story, we anticipated that they would come after us. I don't know that we anticipated they'd come out after us quite as noisily as they did, but we expected that it would be controversial.
Pres. GEORGE W. BUSH: [June 26, 2006] We're at war with a bunch of people who want to hurt the United States of America, and for people to leak that program and for a newspaper to publish it does great harm to the United States of America.
BILL KELLER: It may seem odd to ordinary Americans that somebody like me has the power to defy the president of the United States.
Pres. GEORGE W. BUSH: [June 26, 2006] If you want to figure out what the terrorists are doing, you try to follow their money, and that's exactly what we were doing. And the fact that a newspaper disclosed it makes it harder to win this war on terror.
BILL KELLER: But in fact, that's the way the inventors of the country set things up because the alternative was to let the government be the final arbiter of its own flow of information.
NARRATOR: It's the battle over who controls that flow of information which is at the heart of the struggle between the Bush administration and the press.
Pres. GEORGE W. BUSH: [White House press conference, March 21, 2006] You brought it up. You said, how do I react to a bombing that took place yesterday. It's precisely what the enemy understands is possible to do. They're capable of blowing up innocent life so it ends up on your TV show.
NARRATOR: Against the backdrop of the war on terror, the press has clashed repeatedly with an administration that had arrived in Washington determined to change the rules.
MARK CORALLO, Fmr. Dir. Public Affairs, Justice Dept.: There was a feeling early on in this administration that the previous administration, due to, you know, scandal after scandal, gave up a lot of executive power. And I think that this administration said, "You know what? No way."
NARRATOR: Mark Corallo worked in John Ashcroft's Justice Department.
MARK CORALLO: There was a definite feeling that we have got to recapture the authority that was lost. We've got to bring this back into balance. And that's where it's gone.
NARRATOR: Ashcroft had been among the first to signal a break from the past when he sent out a memo reversing his predecessor's policy on openness.
STEVEN AFTERGOOD, Dir., Project on Govt. Secrecy: What Ashcroft said is that the prior policy, which encouraged disclosure of information unless some foreseeable harm would result, was being overturned in favor of withholding information whenever there was a legal basis to do so. This administration has a track record of resistance to disclosure.
In the earliest days of the Bush administration, Vice President Cheney had his famous energy task force in which people said, "We want to know more about what's going on here," and the vice president said, "Absolutely not. It would have a chilling effect on the quality of the advice that I receive if the names of the people that I talk to were publicly disclosed."
A few months later, President Bush issued an executive order tightening restrictions on public access to records of past presidents. The papers of the Reagan administration were supposed to become public in 2001. This executive order said, "Wait a minute. Those records are not going to be automatically made public."
The secrecy predated 9/11 and is rooted in the president's own personality and in his governing philosophy.
NARRATOR: The president and his team had also brought with them new ideas about the press.
KEN AULETTA, The New Yorker: Every president complains about the press, but what I think is different about this administration from previous administrations is that the Bush administration does not accept that the press has a legitimate public interest role.
NARRATOR: Ken Auletta has covered media for The New Yorker magazine for over a decade.
KEN AULETTA: They view us as a special interest. And so when I asked Andrew Card, his then chief of staff, I said, "Do you accept that the press has a legitimate check and balance function," he said, "Absolutely not." He said, "Congress has a check and balance function. The judiciary does. But not the press."
MARK McKINNON, Fmr. Media Adviser to Pres. Bush: You know, I think Secretary Card was right. I mean, I think the true checks and balances are the judiciary and the Congress. The- you know, the press is not elected.
NARRATOR: Mark McKinnon is a former top media adviser and close confidante of the president.
MARK McKINNON: The press is going to make its determinations. But who- you know, who's going to judge which press outlet is the proper check and balance?
[www.pbs.org: More on the press's role as watchdog]
LOWELL BERGMAN, Correspondent: This administration had a lot of discipline in terms of the way in which it controlled its message.
MARK McKINNON: Yes.
LOWELL BERGMAN: But every administration has said that at the beginning. This one really was very successful keeping people if you will, on message- on- in line.
MARK McKINNON: That's right.
LOWELL BERGMAN: How?
MARK McKINNON: You have a guy at the top who knew- knows what he- knows who he is and what he stands for. If we get off message, he lets us know. And we have a team of people that worked together a long time. We know what works and we know what doesn't.
Pres. GEORGE W. BUSH: I remember 2004, at one point, people- you just stood up and said, you know, "There's no way you can get reelected."
LEONARD DOWNIE, Jr., Exec. Editor, The Washington Post: Certainly, the relationship between this administration and the media is not a good one. And certainly, we believe that the secrecy has been excessive, quite excessive. And it- but at the same time, you know, their job is to do their job, and our job is to find out what's going on.
NARRATOR: Leonard Downie is the executive editor of The Washington Post.
LEONARD DOWNIE, Jr.: This always happens with administrations after they've been around in Washington for a while. Personnel begins to change. Schisms occur within the administration itself. Its control over the message begins to fray. We're finding out more and more all the time.
NARRATOR: By 2005, with the war on terror in its fourth year, more secrets were beginning to leak from the government. One of Downie's national security reporters, Dana Priest, was learning details about a top secret CIA program.
LEONARD DOWNIE, Jr.: Dana's very, very deeply sourced throughout the military and throughout the intelligence services, and a number of these sources were concerned about some of the policies that the administration was carrying out in the war against terrorism. These are people who- as Dana describes them are- are very much- you know, very strong proponents of the war against terrorism. They're active in the war against terrorism. But they're concerned that some of these methods are counterproductive. So for these reasons, they would cooperate with her when she'd ask questions about things that added up to some of these stories.
Washington Post, May 11, 2004: SECRET WORLD OF U.S. INTERROGATION
NARRATOR: The stories were about a system of prisons being run by the CIA-
Washington Post, October 24, 2004: MEMO LETS CIA TAKE DETAINEES OUT OF IRAQ
NARRATOR: -some of which, Priest would learn, were housed in countries in Eastern Europe.
DANA PRIEST, The Washington Post: The existence of the prisons in the places that they're in are illegal in the places where they are.
LOWELL BERGMAN: It wasn't just detention in these democracies in Eastern Europe, it was also interrogations.
DANA PRIEST: The whole reason for having the detentions in the black sites was so that the CIA could interrogate the people in them. And nobody else, not the host nation, nobody-
LOWELL BERGMAN: Not the Pentagon?
DANA PRIEST: Not the Pentagon, not the-
LOWELL BERGMAN: Not the-
DANA PRIEST: -FBI.
LOWELL BERGMAN: -FBI.
DANA PRIEST: Nobody. Just the CIA.
LOWELL BERGMAN: Their little-
DANA PRIEST: Their little prison system.
LOWELL BERGMAN: At a certain point, the administration knew what you were doing-
DANA PRIEST: Right.
LOWELL BERGMAN: -on these detention facilities.
DANA PRIEST: Right. I told them.
LOWELL BERGMAN: You called them up.
DANA PRIEST: I called them up. Whenever there's something that the reporters obviously see as a potentially sensitive piece of information, we will- I will tell them what it is before I publish it and ask for a comment, but also give them a chance, if they want to or if they feel that it's necessary, to say, you know, that piece of information would really be damaging to whatever, an ongoing operation, people's lives, things like that.
[www.pbs.org: Read Priest's interview]
LEONARD DOWNIE, Jr.: There came a time when very senior officials in the administration asked to talk to me, along with Dana and her editors, about their questions about whether or not some of the things she knows would, in their minds, harm national security if we published them.
LOWELL BERGMAN: Who called you?
LEONARD DOWNIE, Jr.: I can't tell you that because I agreed to ground rules in which they would not be named in these- as people would ask to talk to me. They're senior officials of the government, very senior officials of the government.
NARRATOR: As the Bush administration met with The Post about the CIA prisons story, it was also having similar discussions with another paper over an even more explosive story.
ERIC LICHTBLAU, The New York Times: President Bush, soon after 9/11, had signed a secret executive order allowing the NSA to conduct wiretaps on Americans' international communications, their e-mails and phone calls, if the NSA thought these communications might be tied to terrorism or al Qaeda.
NARRATOR: With his colleague, James Risen, New York Times reporter Eric Lichtblau had been reporting on this secret eavesdropping story for over a year.
JAMES RISEN, The New York Times: There was a legal procedure set in place that's been in place for 30 years for them to conduct this kind of surveillance.
ERIC LICHTBLAU: It was widely understood that if the government wanted to listen to your phone calls or read your e-mails and you're within the United States, they needed a court order to do that.
NARRATOR: The reporters had uncovered that the president's Executive Order had allowed the NSA, the National Security Agency, to wiretap without any court oversight.
JAMES RISEN: What I tried to struggle with in writing this story on the NSA was how do we, as a country, really face up to the bounds between what is a realistic fight against terrorism versus the cost of that fight in terms of giving up our civil liberties?
LOWELL BERGMAN: Are we destroying the village in order to save it?
JAMES RISEN: Right.
NARRATOR: By December of 2005, The Times was ready to go with the story, and as it had with The Washington Post, the White House asked for a meeting.
BILL KELLER, Exec. Editor, The New York Times: The ground rules of the meeting, which we agreed to, were that it would be off the record because the president wanted to present us with what he said were classified details about the effectiveness of the program that he thought would persuade us not to publish the article. I'm obviously going to honor our obligation not to talk about anything classified. But the basic fact that the meeting took place, the White House has already talked about.
NARRATOR: Keller arrived at the White House with Arthur Sulzberger, The Times's publisher, and Philip Taubman, then the paper's Washington bureau chief.
BILL KELLER: We were escorted into the Oval Office, which- that's my first visit, probably my last visit to the Bush Oval Office. The president said quite forcefully that this program was something he regarded as part of the crown jewels of our national security and that if we exposed it, we should feel ourselves responsible if there was another attack on the U.S. I think what he said was, you know, "When we're called up to explain to Congress why there was another attack, you should be sitting beside us at the table."
LOWELL BERGMAN: Did you and Mr. Sulzberger and Phil Taubman look at each other? Did you gulp?
BILL KELLER: Look, you take a warning like that very seriously indeed. I mean, it's the president of the United States saying that if you publish this story, you will have blood on your hands.
DAN BARTLETT, Counselor to the President: The president said nothing like that. The president did stress the importance of this program remaining secret. This has been one of the most effective tools in preventing attacks on our country. It's one of the most vital tools that we've had in our arsenal to defend America. And the president felt obligated, if he felt that strongly about it, that he ought to tell the person who was in charge of that paper how he felt.
[www.pbs.org: More on this debate]
LOWELL BERGMAN: But the reporters involved and the editors involved say all they reported on was the question of the legality of the program and that the terrorists, if you will, know we're listening.
DAN BARTLETT: Well, they don't know all the aspects of how we're doing it. And for you to get into a conversation about whether it's legal, there are strong insinuations about how the program works. And the disclosure of such a program is like putting up a big billboard to the enemy saying, "This is how they're defending their country." And we think it's wrong.
BILL KELLER: The president had wrapped it up by reiterating that he thought what we were about to do was a mistake.
LOWELL BERGMAN: Would give aid and comfort to our enemies?
BILL KELLER: Would give aid and comfort to our enemies, yes.
LOWELL BERGMAN: That was the gist of what he said.
BILL KELLER: Uh-huh. We walked down to the corner to catch our taxis in various directions, and I said to the publisher that I wanted to obviously sleep on it and think about what we just heard, but I hadn't- my first impression was I hadn't heard anything there that had changed my mind. And he said he hadn't, either.
LEONARD DOWNIE, Jr., Exec. Editor, The Washington Post: There are things that I know that were reported as long ago by reporters of several decades ago that we've never published in the newspaper and I've never uttered a word about because it's clear to me it would be harmful to national security. But at the same time, many times that claim is made by the government simply because they want to avoid embarrassment.
LOWELL BERGMAN: We're at war. The president says we're at war.
LEONARD DOWNIE, Jr.: Yes, he does.
LOWELL BERGMAN: So who are you to decide what's in the interest of the country, what's national security and what isn't?
LEONARD DOWNIE, Jr.: Well, decisions about whether something would be harmful to national security or not is just another one of those many decisions we make about what we're going to publish or not going to publish. Under our constitutional system, those decisions cannot be made by the government. That's- that's unconstitutional, and it also would be dangerous to our democracy. It has to be left to editors and television producers to make these decisions.
[Vietnam war moratorium protest, October 15, 1969]
KINGMAN BREWSTER, Pres., Yale University: If our country is to survive this wound, let us be more honest in the pursuit of peace!
NARRATOR: The debate over the right to publish state secrets goes back to another era when an unpopular war raged-
NEWSCASTER: Never have so many of our people manifested opposition to this country's involvement in a war.
NARRATOR: -and the government and press were at odds.
PATRICK BUCHANAN, Nixon Speech Writer: We had an agenda we wanted to implement, and the principal impediment to that objective in Vietnam was the mass demonstrations, given aid and comfort and support by the liberal media. They were standing on our windpipe.
NARRATOR: In 1969, Patrick Buchanan was a speech writer in the Nixon White House.
PATRICK BUCHANAN: The battle between the White House and the national media is a battle over who controls the national agenda.
NARRATOR: In 1971, the battle moved to the front page of The New York Times when the paper began running a leaked copy of a secret Defense Department study.
The New York Times, June 13, 1971: PENTAGON STUDY TRACES 3 DECADES OF GROWING U.S. INVOLVEMENT
NARRATOR: Known as the Pentagon Papers, the report revealed the deliberate deceptions that led the country to war in Vietnam.
The New York Times, June 14, 1971: A CONSENSUS TO BOMB DEVELOPED BEFORE '64 ELECTIONS, STUDY SAYS
JAMES GOODALE, Fmr. Genl. Counsel, The New York Times: It came out on a Sunday, and on Monday we were doing well. And then I think it was a Tuesday afternoon, I checked in, said, "Is everything OK?" And my boss, who was opposed to publication, said, "Well, you better come on over."
NARRATOR: James Goodale was general counsel for The New York Times and had urged the paper to publish the secret documents.
JAMES GOODALE: So I ran out, hopped in a cab, shot into The New York Times, went up to the executive floor, which is the 14th floor, and I walked into a room where there was a huge screaming match going on. The government had sent a telegram to The New York Times saying, "Stop publication or we're going to sue you in court the next day."
PATRICK BUCHANAN: I thought that publishing the Pentagon Papers was quasi-treasonous in wartime, yeah. To me, it was a clear effort to sabotage the war effort. A number of these newspapers, you know, cheer us into war, and then they- Americans go into battle and they get killed in great numbers. And then these folks tend to undermine.
NARRATOR: In his telegram, Nixon's attorney general cited a 1917 law called the Espionage Act, which forbids the publication of national defense secrets.
FLOYD ABRAMS, First Amendment Lawyer: He said that the publication, the ongoing publication, by them of portions of the so-called Pentagon Papers violated the Espionage Act.
LOWELL BERGMAN: Classified material.
FLOYD ABRAMS: Classified material relating to the national defense, where national security would be gravely imperiled.
NARRATOR: Floyd Abrams was hired by Goodale to help represent The Times after the paper's corporate counsel refused to take the case.
FLOYD ABRAMS: They had been told by their lawyers that they would likely lose, and most of all, from some sort of moral point of view, that they were acting unpatriotically in publishing the Pentagon Papers.
JAMES GOODALE: So the issue was, Do we obey the government or do we make the government come after us? And that was the subject of this terrific argument.
NARRATOR: Goodale joined in, and then was called to the phone to talk to the publisher, Arthur "Punch" Sulzberger, who was on vacation in Europe.
JAMES GOODALE: Punch said, "Jim, what do you think we ought to do?" And I said, "I think you're going to publish." He said, "Well, what about"- "I think you should publish." "What about the criminal liability?" I said, "I think that's a- that's a risk- I think that's a risk you can- you can take, and if they stop us, I think we can win that, too." He said, "OK, go with it."
NARRATOR: As it had threatened, the Nixon administration went to court and got an order barring the newspaper from continuing to publish.
New York Times, June 16, 1971: JUDGE, AT REQUEST OF U.S., HALTS TIMES VIETNAM SERIES FOUR DAYS PENDING HEARING ON INJUNCTION
NARRATOR: The paper appealed the decision and the case moved quickly through the courts.
JAMES GOODALE: Constitutional law is an interesting thing. It reflects the politics of the moment. Vietnam war- terrific public antipathy toward the administration and a lot of popular support for The New York Times. When I went into the courtroom, people hissed, shouted. They were crowded. It was like the Scopes trial. And none in favor of the government.
NEWSCASTER: [June 30, 1971] For two-and-a-half weeks, two constitutional principles have clashed, the government's view of our national security versus the newspapers' view of their freedom to print. And the newspapers won.
NARRATOR: The Supreme Court ruled in favor of The Times and The Washington Post, which had also published portions of the Pentagon Papers.
ARTHUR O. SULZBERGER, Publisher, The New York Times: Well, my reaction was very simply one of delight and one of, "Now we'll go back to business as normal, getting out The Times."
New York Times, July 1, 1971: SUPREME COURT, 6-3, UPHOLDS NEWSPAPERS ON PUBLICATION OF THE PENTAGON PAPERS; TIMES RESUMES ITS SERIES, HALTED 15 DAYS
NARRATOR: The Times and Post resumed publishing the Pentagon Papers the next day.
FLOYD ABRAMS: It was a very important case to resist. If they hadn't been willing to really risk lots, things would be very different both legally and almost culturally, in terms of the relationship between the press and the government.
REPORTER: Mr. Sulzberger, knowing what you know now about what happened, would you do this again?
ARTHUR O. SULZBERGER: Yes, sir, but I'd time my vacation to Europe slightly differently.
FLOYD ABRAMS: We won a near absolute ban on prior restraints, injunctions against speech.
LOWELL BERGMAN: That still stands today.
FLOYD ABRAMS: That still stands. I mean, if the government had gone to court to try to prevent publication of some of the recent controversial pieces by The Times, I believe we would have won because of the Pentagon Papers case.
But the overhanging question is, "All right, they can't stop you in advance. Can they put you in jail? Can they punish you after the fact?"
NARRATOR: Four years later, that's exactly what the Ford White House wondered.
New York Times, May 25, 1975: SUBMARINES OF U.S. STAGE SPY MISSIONS INSIDE SOVIET WATERS
NARRATOR: New York Times reporter Seymour Hersh had exposed details of highly-classified Navy missions being used to spy on the Soviet Union. Ford's chief of staff, Donald Rumsfeld, and his young deputy, Dick Cheney, began deliberating on what to do.
In a handwritten memo obtained by FRONTLINE, Cheney asked what action they should take to enforce the law which prohibits such disclosure.
SEYMOUR HERSH, Author, Journalist: I was told about it at the time. I didn't think it was serious. It was more serious-
LOWELL BERGMAN: You were told?
SEYMOUR HERSH: I was told at the time. Somebody in Justice warned me that they were- they were- you know, they were looking at me. They wanted people to go into my house. They called it my apartment, but I had a house.
NARRATOR: In notes from a meeting with the attorney general, they discussed alternatives for action, from getting a search warrant to go after Hersh's papers to seeking immediate indictments of The New York Times and Hersh.
[www.pbs.org: Read the memos]
SEYMOUR HERSH: When Cheney and Rumsfeld were looking at me, the attorney general said, "Get out of here." The political cost of moving against me or people- I don't mean that arrogantly, not about- moving against somebody who's prominent in terms of being a critic, is too high.
NARRATOR: Prosecuting the reporter, the Justice Department warned, would become a cause celebre for the press.
SEYMOUR HERSH: You can't trample the Constitution. And if they do, I'm going to scream and moan and be a hero, you know, and give more trouble than they would if they'd just left me alone, which is the thing they did in this case.
NARRATOR: In the end, no action was taken against Hersh.
LOWELL BERGMAN: This situation today, 35 years later, it just seems like deja vu all over again- I mean, The New York Times, national security-related stories, the government reacting.
FLOYD ABRAMS: Right. But there are some differences. One difference is that the press is not in as good stead with the American public now as it was in 1971. You know, nowadays, it's not easy to find a sort of full-throated supporter of the press.
[www.pbs.org: The public's opinion of the press]
NARRATOR: Indeed, last year, when The Times and Post published their NSA and CIA stories, the reaction was venomous.
Washington Post, November 2, 2005: CIA HOLDS TERROR SUSPECTS IN SECRET PRISONS
JOE SCARBOROUGH, Host, MSNBC "Scarborough Country": [November 28, 2005] I can't tell you how upset I am by this, the fact that an entire CIA program is outed by somebody that doesn't like that program!
NARRATOR: Cable talk shows lit up with condemnation of the papers' stories.
New York Times, December 16, 2005: BUSH LETS U.S. SPY ON CALLERS WITHOUT COURTS
SEAN HANNITY, Co-Host, Fox News "Hannity & Colmes": [December 16, 2005] It seems like, once again, the anti-Bush New York Times wants to create a conspiracy where there is none.
NARRATOR: The Bush administration also took to the airwaves.
CONDOLEEZZA RICE, National Security Adviser: ["Fox and Friends," December 18, 2005] It is really a serious matter when we get the disclosure of a program like this because, after all, what we must do is protect from those who are trying to hurt us.
Vice Pres. RICHARD CHENEY: [Fox News "Special Report," February 15, 2006] One of the problems we have as a government is our inability to keep secrets.
DAN BARTLETT, Counselor to the President: We do think it was a fairly egregious act. It was a very- I'm sure a difficult decision for The New York Times to make. I think they made the wrong decision, and it harmed the national security interests of our country.
Pres. GEORGE W. BUSH: [press conference, December 19, 2005] It was a shameful act for someone to disclose this very important program in a time of war.
JOHN MILLER, Asst. Dir., Public Affairs, FBI: My first reaction in reading the NSA story was, "Boy, there's an excruciating amount of detail in here," not just about the program's existence but about the actual mechanics of how it works and what makes it work and why it functions well in one case and not in another case.
NARRATOR: John Miller has been on both sides of the divide between the press and government. As a reporter at ABC News, he was one of the last journalists to interview Osama bin Laden. He is now an assistant director of the FBI.
LOWELL BERGMAN: So you didn't think it was a responsible story.
JOHN MILLER: The standard I use to weigh things on is, "Is this going to be a good story?" Clearly, the NSA was going to be a good story. "Is it going to hurt the government's ability to keep people safe?" And you know, that is where the debate is in that story.
New York Times, December 24, 2005: SPY AGENCY MINED VAST DATA TROVE, OFFICIALS REPORT
NARRATOR: To some in the intelligence community, it was The Times's follow-up NSA story that caused the most concern.
LOWELL BERGMAN: There was an article that revealed that there were switches in phone companies in the United States-
JOHN McLAUGHLIN, Dpty. Director, CIA, 2000-04: Right.
LOWELL BERGMAN: -that handled all the traffic.
JOHN MCLAUGHLIN: Right.
LOWELL BERGMAN: And what I had heard was people were very upset about the second-
JOHN MCLAUGHLIN: Of course. Of course.
LOWELL BERGMAN: -much more so than the first.
JOHN MCLAUGHLIN: Because the second- the second of the two articles revealed techniques that were being used to monitor traffic. Everyone's always talking about connecting the dots. These are the dots. And the number of dots we have to work with has increased exponentially since 9/11 as a result of programs like this. You might get from one of these programs nothing more than the name of an individual. You then go to other programs. You go to a detainee. You work the system.
And that's what you get from these programs. You get fragments, shards of things that ultimately form a picture. And to the degree that terrorists tighten up in their transactions, their communication and their security, you will get fewer of those things.
LOWELL BERGMAN: The follow-up story in which The New York Times publishes that the way in which this eavesdropping is being done is a data mining operation going on through access to the switches that telecommunications companies have here in the United States- that's something that, while it wasn't classified, is something that terrorists were not aware of.
BILL KELLER, Exec. Editor, The New York Times: Well, I don't know whether terrorists were aware of that or not. I think- you know, my hunch is that terrorists tend to assume extraordinary powers, including extraordinary technological prowess, on the part of the Americans. And I think they tend to assume that the American government uses that power in any way it can.
NARRATOR: But the leadership of the intelligence community doesn't agree.
PORTER GOSS, Director, CIA, 2004-06: [Congressional hearing, February 2, 2006] The consequences of these leaks- and I'm happy to have your question to respond, and I'm sorry to tell you that the damage has been very severe to our capabilities to carry out our mission.
DAVID SZADY, Asst. Dir. FBI Counterintelligence, 2002-06: Leaking is a serious issue. To see the frustration and the outrage of people expressed after certain things are leaked which have severely damaged operations or collection efforts or put sources in jeopardy or in danger- it's been very, very serious over the years.
JOHN MILLER: You go into a highly confidential briefing on a classified level, and a few hours later or the next morning, the phone rings and somebody reads it all back to you, and maybe a little more than that. And you hang up the phone and say, "How did this get out? Who takes this oath so casually that they hand this stuff out?"
JAMES RISEN, The New York Times: The people and the sources of information that Eric Lichtblau and I got for our story were people who in some cases were tortured by their knowledge of this information. They felt compelled to tell this information, to make the public aware of it, because they believed it was either unconstitutional or illegal. And I think they were classic whistleblowers.
LOWELL BERGMAN: You know, there's a leak investigation going on. They're collecting the names of reporters who've talked to officials who had access to this program. There's apparently over a score of agents working out of the Washington field office. Is it drying up your sources?
JAMES RISEN:: Well, I'd rather not get into that in any detail. I can just say that, you know, continuing to report and work.
LOWELL BERGMAN: You got interviewed, right?
DAVID SZADY: Yes. If you were briefed into a certain program that was leaked, then there's a possibility that you could be the leaker.
LOWELL BERGMAN: Have they interviewed you?
MARK CORALLO, Fmr. Dir. Public Affairs, Justice Dept.: I've been interviewed.
LOWELL BERGMAN: What did they ask you?
MARK CORALLO: They just- you know, they wanted to know, you know, why these kinds of leaks happen.
LOWELL BERGMAN: Today I talked with a source of mine who said he just got polygraphed.
LEONARD DOWNIE, Jr., Exec. Editor, The Washington Post: Yeah. That's going on all around town. There are investigations of- of source- of sources going on all around town. And it's very, very worrying. It's not good. It's not good for the free flow of information to the public, and it's not good to criminalize sources and reporters who are merely engaged in trying to keep the American public properly informed.
NARRATOR: So far, none of the reporters involved in these national security stories have been asked to reveal their sources.
PORTER GOSS: [congressional hearing, February 2, 2006] On the external side, I've called in the FBI.
NARRATOR: But the threat remains.
PORTER GOSS: It is my aim and it is my hope that we will witness a grand jury investigation, with reporters present being asked to reveal who is leaking this information. I believe the safety of this nation and the people of this country deserve nothing less. And I thank you for your question.
DAVID SZADY: I don't think anybody - special prosecutor, FBI, Department of Justice - really relishes the idea of using a grand jury or a subpoena to go and have a reporter talk. But I think it also goes to the issue that these are serious matters at times and that decisions have to be made about whether or not the need to protect sources, methods, operations, intelligence gathering for the country is paramount.
PROTESTERS: Prosecute The Times! Prosecute the Times! Prosecute the Times!
NARRATOR: In June 2006, after The New York Times published its SWIFT banking story, the rhetoric grew more heated still.
BILL O'REILLY, Host, Fox News "The O'Reilly Factor": [ June 23, 2006] I say that some anti-Bush media in America is putting us all in danger by exposing, criticizing and undermining just about everything the administration does in the war on terror.
Pres. GEORGE W. BUSH: [St. Louis, June 28, 2006] There can be no excuse for anyone entrusted with vital intelligence to leak it, and no excuse for any newspaper to print it.
BILL KELLER: I don't mean to be too cynical about the motivations of, you know, the president and the attorney general, but some of it clearly is political. I mean, it's not an accident that a certain number of these speeches decrying The New York Times happen to be at the microphones of Republican fund-raising events.
Vice Pres. RICHARD CHENEY: [Nebraska fundraiser, June 26, 2006] Some in the press, in particular The New York Times have made the job of defending against further terrorist attacks more difficult by insisting on publishing detailed information about vital national security programs.
BILL KELLER: The New York Times is red meat to a certain slice of the conservative base.
Rep. PETER KING (R-NY): ["Fox News Sunday," June 25, 2006] No one elected The New York Times to do anything, and The New York Times is putting its own arrogant, elitist, left-wing agenda before the interests of the American people.
NARRATOR: But in the days following The Times's banking story, Representative Peter King went beyond mere rhetoric. He wrote a letter to the attorney general formally requesting that The Times be investigated for possible criminal prosecution under the Espionage Act, the same law the Nixon administration had used in trying to prevent the publication of the Pentagon Papers.
A month earlier, Attorney General Gonzales had spoken to the issue of prosecuting journalists.
GEORGE STEPHANOPOULOS, Host, ABC "This Week": [May 21, 2006] So you believe journalists can be prosecuted for publishing classified information?
ALBERTO GONZALES, Attorney General: Well, again, George, it depends on the circumstances. There are some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility.
JAMES GOODALE: When he says there are laws on the books, well, people who know, know there are not many laws there other than the Espionage Act. So he effectively is saying the Espionage Act can be used.
LOWELL BERGMAN: You know what the Espionage Act is, right?
BILL KELLER: I'm not a lawyer, but I know what it is.
LOWELL BERGMAN: The New York Times was threatened 35 years ago. You think they're more serious this time?
BILL KELLER:: Oh, I don't know. I don't know how serious they are about the Espionage Act. Honestly, I don't. But my instinct is that, at this point, they're largely brandishing the Espionage Act in hopes that that will make us nervous and intimidate us, maybe intimidate some of our sources.
LOWELL BERGMAN: Should they be prosecuted?
DAN BARTLETT: I'm not going to get into prosecutorial decisions made by the Justice Department. I'm not a lawyer, nor would I try to be. But it's an important debate for the country to have, for the media and government officials and others to have who watch this issue closely because we are in a new paradigm where the enemy of our country- enemies of our country use the very technology and comforts of our lifestyle against us. And this is a healthy debate for our country.
LOWELL BERGMAN: There used to be, if you will, a de facto truce between reporters and, for instance, the Justice Department around confidential sources, particularly in Washington, about being able to talk without fear of retribution. That's all broken down, hasn't it.
DANA PRIEST, The Washington Post: It has all broken down little by little because I think, at first- even the Valerie Plame leak investigation- I think we still- we understood that the ground was shifting, but didn't really- couldn't really judge how much. But as time marches on and they're now potentially looking at the Espionage Act to use against people who gather information, rather than people who give information- the various leak investigations and the effort by the administration to intimidate, I really do think, the major media into just leaving this area.
PHIL BRONSTEIN, Editor, San Francisco Chronicle: For 30 or more years, there had been a certain assumption about the government and the press. And suddenly in the last couple of years, that's changed. The government has been much more aggressive in going after the press.
NARRATOR: Phil Bronstein is the editor of The San Francisco Chronicle. Two of his reporters have recently found themselves in the news.
NEWSCASTER: [August 4, 2006] A showdown- lawyers representing two reporters who won't reveal their sources-
NARRATOR: And in legal jeopardy.
REPORTER: We've said we're not going to betray the sources, and we mean that.
NARRATOR: But this time, the subject is not the war on terror, it's baseball.
San Francisco Chronicle, September 6, 2003: AGENTS RAID SUPPLEMENT LAB
NARRATOR: In 2003, authorities raided a sports nutrition lab called BALCO, which was suspected of distributing steroids to athletes.
MARK FAINARU-WADA, San Francisco Chronicle: When you went to the web site for BALCO, you saw all these famous athletes that were part of the company, or that were at least doing business with the company. Barry Bonds was the most prominent, but Marion Jones, Tim Montgomery, Bill Romanowski.
San Francisco Chronicle, December 5, 2003: SLUGGER TESTIFIES IN STEROIDS PROBE
San Francisco Chronicle, December 12, 2003: STAR-STUDDED DAY FOR THE GRAND JURY
NARRATOR: Mark Fainaru-Wada and Lance Williams reported on the BALCO investigation for The Chronicle as some of the biggest names in sports began testifying.
LANCE WILLIAMS, San Francisco Chronicle: Very early on, Mark and I heard that Bonds had used steroids, that that was at the heart of the investigation. I assumed that that would all come out when indictments were issued.
NARRATOR: But it did not.
JOHN ASHCROFT, Attorney General: [February 12, 2004] After an 18-month investigation, a federal grand jury-
NARRATOR: The indictments did not name any athletes, but by the end of 2004, The Chronicle had the names.
NEWSCASTER: One of baseball's biggest stars reportedly admits to taking banned illegal substances-
NARRATOR: A confidential source had leaked the athletes' grand jury testimony to the reporters.
NEWSCASTER: There's new information tonight about San Francisco Giants slugger Barry Bonds.
NARRATOR: The stories dominated the news:
San Francisco Chronicle, December 2, 2004: GIAMBI ADMITTED TAKING STEROIDS
San Francisco Chronicle, December 3, 2004: WHAT BONDS TOLD BALCO GRAND JURY
NARRATOR: Bonds had said he used BALCO products but never thought they were steroids, and Yankees slugger Jason Giambi had admitted he used steroids.
NARRATOR: In the wake of The Chronicle reports, Congress investigated steroid use in baseball. The reporters were honored for their work at a White House Correspondents dinner.
LANCE WILLIAMS: We met the president in 2005. He knew who we were and he knew the stories. You know, he's a former baseball owner. And he said, "You've done a service."
NARRATOR: But not everyone in the government was pleased with the Chronicle's reporting.
MARK FAINARU-WADA: We heard from the government almost immediately upon publishing our first story that had grand jury testimony in it.
LOWELL BERGMAN: What did they say to you?
MARK FAINARU-WADA: Oh, they said, "We understand you have this information and we'd like it back, and we'd like to know how you got it."
PHIL BRONSTEIN: The government wanted to know who our sources were. They wanted all the related information. They wanted the packaging it came in, and so forth, anything that would identify the sources.
MARK FAINARU-WADA: We- you know, we thought- talked about it, all of us, and of course, you know, respectfully declined.
LANCE WILLIAMS: I respect the court system, and I'll, you know, comply with their wishes in every way possible. But I am being asked to- not asked, told to betray not only sources but ideals that I've held for 30 years as a reporter. And I'm also being asked to give up my career because, don't kid yourself, if they bully me into betraying my sources, I can't work anymore.
RANDALL D. ELIASON, Fmr. Asst. U.S. Attorney: I think it's an interesting notion in journalism that the professional ethics and standards require them to violate the law.
NARRATOR: Randall Eliason is a former federal prosecutor who has studied the legal standing of the privilege that reporters assert to protect their sources.
RANDALL D. ELIASON: No one has a right to decide themselves what the law requires. I know journalists feel very strongly that they need this privilege in order to do their jobs. Congress hasn't agreed and the Supreme Court hasn't agreed. And so journalists have no more right than any other witness to say, "I'm just not going to testify, no matter what you say."
[www.pbs.org: Read Randall Eliason's interview]
NARRATOR: With the journalists refusing to cooperate, last May the Justice Department authorized subpoenas to The Chronicle and its two reporters, requiring that they reveal the source of the leaked grand jury testimony.
MARK CORALLO, Fmr. Dir. Public Affairs, Justice Dept.: The Justice Department was way out of line here. This was an abuse of power.
NARRATOR: Mark Corallo, who was involved in approving media subpoenas under Attorney General Ashcroft, filed an affidavit in support of the reporters.
MARK CORALLO: The government just did not meet the standards set by their own guidelines. The guidelines are very clear. A media subpoena should only be sought when all other avenues of investigation have been foreclosed and only in exigent circumstances. And exigent circumstances were explained to me to be grave national security matters-
LOWELL BERGMAN: Emergencies.
MARK CORALLO: Yeah, emergencies.
LOWELL BERGMAN: Life and death.
MARK CORALLO: Life and death.
LOWELL BERGMAN: What's the problem here, your successor is not a baseball fan?
MARK CORALLO: I don't know. You know, I don't know what's happened here. It seems that there's been a policy shift. It seems that, you know, what- the way we operated under Attorney General Ashcroft, where we were absolutely committed to not issuing one of these subpoenas- that seems to have changed.
TASIA SCOLINOS, Dir., Public Affairs, Justice Dept.: You know, Mr. Corallo is no longer at the Justice Department, and so I think he's not aware of all the facts and- and you know, perhaps surrounding these cases.
NARRATOR: Tasia Scolinos is Mark Corallo's successor at the Justice Department and helped review the media subpoenas in the BALCO case.
TASIA SCOLINOS: There's no legal requirement that the department put special guidelines in place when it comes to subpoenaing members of the media. Those are self-imposed guidelines. We feel that we have a very serious obligation on behalf of the taxpayers to prosecute cases to the fullest extent of the law.
LOWELL BERGMAN: What's the national security or exigent circumstances in a case where the president of the United States has commended the reporting?
TASIA SCOLINOS: Well, if you notice, the guidelines- the guidelines don't specifically say it has to be a national security case.
LOWELL BERGMAN: Understood.
TASIA SCOLINOS: The guidelines, I believe, say that there needs to be exigent- exigent circumstances. And that can take a lot of different forms.
NARRATOR: The reporters fought the subpoenas through the courts, facing up to 18 months in jail if they lost.
LANCE WILLIAMS: [Press conference, September 21, 2006] You know, we aren't choosing prison here, by any means. We feel the choice has been made by the prosecutors, and their demands are just impossible.
LOWELL BERGMAN: The administration has the discretion, through the Justice Department, whether or not to bring certain cases. And I guess in this particular case, the question is, What's the rationale? You're going to shut down reporting on something which everyone says has been to the interests of our public health and to our youth who are involved in sports.
DAN BARTLETT, Counselor to the President: Well, I think that's subjective, to say that it would shut down. These are tough calls. We put very seasoned and experienced prosecutors in these U.S. attorney positions to make the tough calls. But ultimately, that's why there's the checks and balances of a court system. The courts will ultimately vet that out.
LOWELL BERGMAN: So we cannot expect the administration to back down on that case, to back off?
DAN BARTLETT: I speak only for the- personally for the president. We would not interject from the White House into a criminal prosecution. The U.S. attorneys involved in this have broad discretion to use- to pursue these cases as they see fit.
LOWELL BERGMAN: You're ready to go to prison.
MARK FAINARU-WADA: Well, "ready" is a perhaps not the appropriate word, but- prepared, I guess, although I don't even know if I'm prepared. Well, we're- if we have to go to prison for this thing, then that's, I guess, what's going to happen. I don't say that lightly at all. Neither of us want to go to jail, but it's not an option for us to provide information about confidential sources.
NARRATOR: But in the end, the reporters did not have to do either. In an unexpected twist, just last week a BALCO lawyer admitted to leaking the grand jury testimony. The government has agreed to abandon its effort to put the two reporters in prison.
But 30 miles east of San Francisco, a reporter has gone to jail. Last fall, freelance journalist and blogger Josh Wolf turned himself in to the Federal Correctional Institution in Dublin, California. Wolf was jailed for refusing to testify in front of a grand jury and to turn over video footage that the FBI had demanded.
No cameras have been allowed to film with Wolf while he's been in jail, but FRONTLINE sat down with him days before his imprisonment.
LOWELL BERGMAN: How did you first find out that the FBI was interested in what you may have shot?
JOSH WOLF, Freelance Journalist: I was sitting in my room on the phone with my mother and I hear the doorbell ring. Come to get the door, and there's a guy in Bermuda shorts and, like, maybe a Hawaiian button-down shirt and one of those accordion briefcase things. And my first thought was, like, "This has to be a reporter." He was, like, "Are you Josh?" "Yeah." "Can I talk to you?" "Sure." At this point, he flashes the FBI badge, just like in the movies, opens it up. And you're, like, "Oh."
NARRATOR: It's outtakes of this video that the FBI wants. It's of an anarchist protest in San Francisco. Wolf shot it and posted portions of it on his blog, which covers political protests.
LOWELL BERGMAN: What was the protest about, and what were you doing there?
JOSH WOLF: The protest was facilitated by a group called Anarchist Action, in solidarity with those that were marching in Glen Eagle, Scotland, against the G8 Summit that was going on at the time.
NARRATOR: As Wolf filmed, the demonstration grew violent.
POLICE OFFICER ON LOUDSPEAKER: [video July 8, 2005] This is an unpermitted march. Get out of the street. You are creating a public safety hazard.
NARRATOR: A police officer was seriously injured, and the police would later claim that some of the protesters tried to set a police car on fire.
Wolf has made part of his footage available to local news and to FRONTLINE, but it's footage that he has not released that the FBI wanted, claiming that his tape could reveal who allegedly tried to burn the police car.
JOSH WOLF: My concern is that this isn't about the SFPD police car at all. I feel that if I were to open the floodgates by providing them a tape to prove that this subject isn't on it, that I would then be subject to questions of, "Who is this person? Who is this person? Who is this person?" And basically, at that point, all those people would be subpoenaed. And it'd be a never-ending witch hunt to try to make a database of civil dissent and people engaged in civil dissidence and people engaged in civil dissent.
RANDALL ELIASON: It's not really his decision as to what's important and what isn't in a federal grand jury investigation. We don't really know what exactly the government is looking at in this case, and unless you've involved in the actual grand jury investigation, you can't know. So whether it is some broader set of allegations that's being investigated or some broader kind of conspiracy, only people involved in the actual investigation know that.
JOSH WOLF: [press conference, September 1, 2006] If I were to give those tapes to them, then I stop being an independent journalist and become, as some of the briefs say, a de facto investigator for the government.
There was a trust established between people involved in the organization that I was covering and myself, into the fact that what I chose to release was what I chose to release and that I wasn't an investigator for the state, turning over piles of tape for fishing expeditions.
NARRATOR: Wolf has already been in jail for six months. The judge sentenced him to remain in custody for the duration of the grand jury term, which is due to expire this July. He has already served longer for defying a court order than any journalist in American history.
NEWSCASTER: We'll take you live now to the Justice Department, as Attorney General Alberto Gonzales briefs reporters on terror-related indictments.
NEWSCASTER: Iraqi leaders reportedly agreed to develop a timetable-
NEWSCASTER: The president strongly defends the detention and questioning of terror subjects by the CIA, and he urges Congress to grant him legal authority to try suspects-
NARRATOR: The debate around the national security programs revealed by The Times and Post has continued.
NEWSCASTER: It was possibly the worst-kept secret around, but today President Bush finally admitted it was true.
NARRATOR: Last September, The Post's CIA prisons story was back in the news-
NEWSCASTER: The president insisted techniques used on the detainees were-
NARRATOR: -when the president confirmed the detention sites for the first time.
Pres. GEORGE W. BUSH: This program has helped us to take potential mass murderers off the streets before they were able to kill.
DANA PRIEST, The Washington Post: The media has a hugely important role during this time to bring out the things that are worth debating. And I think one of the reasons the government's reacted in the way that it has is that it's not allowed that to happen.
NEWSCASTER: [June 23, 2006] The feds are trying to kill a lawsuit over the NSA program to wiretap without warrants.
NARRATOR: The NSA eavesdropping story has continued, as well.
New York Times, February 1, 2007: JUDGES WEIGH ARGUMENTS IN U.S. EAVESDROPPING CASE
NARRATOR: In August 2006, a federal judge ruled that the program was unconstitutional, and the Bush administration is appealing that decision. But last month, the administration agreed to put the program under court oversight.
JAMES RISEN, The New York Times: The only thing we're saying is this is something the American people should know about. They then can decide whether it's something they want to continue or not. That's our role. Our role is not to say to the American- to the government "Don't do this," our role is, "This is happening. You decide."
BILL O'REILLY: Who do you want or trust to protect you against terrorists, the Bush administration or the committed left media backed by anonymous leaks?
JOHN McLAUGHLIN, Dpty. Director, CIA, 2000-04: There's merit in the United States deciding at this point where does it want to be on this spectrum from security to privacy. At the end of this whole debate, perhaps we will know better as a country where we want to be.
LOWELL BERGMAN: So you are saying that there is some public interest benefit that has taken place, despite the fact that you would have stopped these leaks if you could have.
JOHN MCLAUGHLIN: There's some public interest benefit that's taken place, but the counterterrorism effort has also been set back. Life isn't simple.
LOWELL BERGMAN: Not in a democracy.
JOHN MCLAUGHLIN: Not in a democracy.
NEWS WAR: Secrets, Sources & Spin Pt. 2
and Lowell Bergman & Seth Bomse
and Arun Rath
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ANNOUNCER: This report continues on FRONTLINE's Web site, where you can watch the full program again on line, access a database of dozens of interviews with journalists, editors and scholars, read about the rights and responsibilities of the press, and what the Plame case revealed about Washington's culture of reporting. Then join the discussion at PBS.organization.
Next time on FRONTLINE:
- Anyone can do journalism.
ANNOUNCER: There are more sources of news than ever before.
- Do you ever feel like the 6:00 o'clock news just ain't cutting it?
ANNOUNCER: But what is happening to the news?
- The new media are investing almost nothing in original reporting.
- The economic underpinning for all these news organizations is changing.
- It really has been hard to cover the world.
ANNOUNCER: Can journalism survive?
- Who's going to pay for the news?
ANNOUNCER: News War next time on FRONTLINE.
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