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eric lichtblau

Lichtblau covers the Justice Department for The New York Times. He co-wrote, with James Risen, the Times' Pulitzer Prize-winning stories on the NSA wiretapping program, as well as reports on the government's tracking of suspicious financial transations through the SWIFT banking network. This is an edited transcript of an interview conducted July 14, 2006.

... What was the NSA [National Security Agency] eavesdropping story about?

Well, the story was revealing that 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, without a court warrant, which was going outside the process that had been established after Watergate under the Foreign Intelligence Surveillance Act [FISA], ... if the NSA thought these communications might be tied to terrorism or Al Qaeda. ... 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.

The so-called secret court, the Foreign Intelligence Surveillance Act court, wasn't good enough for them; they needed to just be able to do it at will.

Right. What [former NSA Director Gen. Michael] Hayden has said numerous times is that ... they needed to be able to respond more agilely and quickly in a way that the FISA court did not allow. Now, there are people on Capitol Hill who have had classified briefings who dispute that interpretation, who say that from what they have seen of the cases that were examined by NSA, there's no reason they could not have done it through FISA, and that the real explanation as to why they've gone around the court is the possibility that they're using much broader data-mining techniques in a way that a court wouldn't be in a position to handle and would probably never authorize. ...

Why did it take 14 months for the NSA story to get in the paper?

The paper takes national security issues very, very seriously. I think the fact that we did look as long and hard at that as we did is evidence that we're not just going to rush something into the paper that could compromise national security. ...

As I understand it, there were meetings in the White House, both involving the Washington bureau chief [Phil Taubman] and the executive editor [Bill Keller]. ...

It's come out publicly that there were meetings. I'm not going to get into all the internal back-and-forth. It's the paper's decision; those are decisions made way above my pay grade. ...

Then you did the SWIFT story. What did the SWIFT story say?

The SWIFT story revealed that the CIA, the Treasury Department and the FBI were sifting through millions and millions of private banking transactions, the bulk of them involving money coming into and out of the United States, in an effort to trace terrorist money. They had gotten extraordinary access to a database of a banking cooperative in Brussels known as SWIFT, which routes most of the major transactions around the world, ... $6 trillion a day.

“I like reporting the news; I don't like being in it. Reporters want to be the fly on the wall. You don't want to be in the center of the story.”

So the Treasury Department had served very broad administrative subpoenas on SWIFT to gather millions and millions of records at a time. The CIA and the FBI were then sifting through those to follow up intelligence leads that they thought might point to terrorist financing. ...

So what was extraordinary here ... [was] they didn't go to a judge; they could just write their own ticket, if you will. ...

Right. There are generally much narrower individual subpoenas. They're issued if they want access to your banking records or my banking records. They would generally have to establish the relevance to a particular investigation. This was an operation that in scope was far greater than anything that was known publicly about how they were gathering these records. ...

Did the fact that the L.A. Times got wind of the story ... force it into the paper?

No, not really. The story was ready to go. Competitive factors can maybe influence a bit when you decide to run, but I think when we made the decision, it was clear that other media were onto the story as well, had heard that we were working on the story and that it was about to break. I think the Treasury Department realized that.

That's why they actually leaked the story.

They put it out publicly themselves, yeah. ... Brought The Wall Street Journal in, brought The Washington Post in. ... I think it's also worth noting that all the protests over why we ran the story kept the story in the news for several days afterwards. The argument that we don't want the bad guys to know about this program I think is interesting in light of the fact that it was the protests from the White House [and] Republican leaders that kept this a front-page story for days and days afterward. ...

... After the NSA story ran, there was a reaction, but there was really a firestorm around the SWIFT story. Why?

I don't know. Certainly the SWIFT story generated more reaction in terms of why we decided to run the story. The NSA story generated some of that, but not the level we saw with the SWIFT story. I think partly it's the fact that the administration saw this as our second go-around on this issue, and there were commentators who have said there was just a political opportunity here with the midterm elections coming up. I don't claim to know whether or not that's the motivation or [if] that's true, but I've heard people say that. ...

The president says the story was disgraceful. Some people are suggesting The New York Times, and by association you, should be prosecuted under the Espionage Act. Did you expect this?

We knew that both the NSA story and the banking SWIFT story would be controversial. I think this last go-around with the banking story, the reaction has been a little harsher than I would have imagined. I think the administration saw this as strike two by The New York Times, and so they really came out full blow. ...

The funny thing is that they said the same thing after the NSA story, if you recall. Immediately the president came out and said that the disclosure of this valuable [program] was a shameful act. ... Then, ... a few weeks into it, the White House started saying that this is a healthy public debate and almost welcoming it. It led to all sorts of congressional hearings and various proposals in Congress. Just the other day, the White House reversed course and said that they are willing to let for the first time the FISA court itself rule on the constitutionality of the NSA program.

So it started out as a shameful disclosure that apparently opened up a healthy public dialogue. I think we're starting to see that same thing with the banking story. ...

There is a leak investigation going on, ... and they're looking at you or Jim Risen; they're looking at [The Washington Post's] Dana Priest; and it appears they may also be looking at the SWIFT story, the financial tracking story. Have you been subpoenaed?

No subpoena. At least not that I've been told about, no. ... We have not been contacted. I certainly have not personally been contacted.

And at least one official of the CIA was named as someone who ... didn't pass a polygraph or had some inappropriate contact, according to the agency, with the press.

Yeah, I just know what I've read about that, which is the Mary McCarthy situation. It's definitely a whole different climate these days. It's a much more antagonistic relationship than I can remember, certainly.

Are you hearing from people that they're being interviewed?

I'm aware that certain people have been contacted, certainly. The FBI seems to be going after this pretty aggressively, just looking at the numbers of agents assigned to it. ...

Did it change the way you do business?

A little bit. You try not to let it affect you, but it's bound to have a bit of a chilling effect in terms of relationships with sources -- a lot of jokes about whether or not this call is being wiretapped. You try to be more discreet than maybe we once were. You get people who are less willing to talk. On the other side, though, you get people who may be more willing to talk because they're a little bit bothered by what they see as a real crackdown on public information and public debate. ...

When someone gives you information which you may believe is classified, top secret, are you worried that you may be complicit in violating the law by just taking possession of the information?

No, I think, is the short answer, because luckily in this country we don't have a State Secrets Act like in Britain, at least not yet. Most lawyers will tell you that it is not a crime for any news organization in this country to disseminate information that could arguably be considered classified. That's why we have the First Amendment and a vigorous press to serve as a watchdog on government.

Certainly there's been a bit of a slope that we've gone down in expanding the definition of what is a crime when it comes to classified information. The AIPAC [American Israel Public Affairs Committee] case has been a real test case that has worried a lot of people who think that it's effectively going down the road of criminalizing any discussion about matters that could conceivably be considered classified or sensitive. Those are discussions that go on every day in Washington, not just between reporters and sources but between lobbyists and lawmakers, lawmakers and lawmakers, executive branch and legislative branch. If you start criminalizing that, you really change the whole nature of public discourse in Washington.

You say there's no Official Secrets Act, but in fact there is. There's an Espionage Act, and it says public information and possessed information that's classified. It just hasn't been enforced.

Yeah, an Espionage Act that certainly has never been used in that way to go after reporters before. There may be people in the government who would like to interpret the Espionage Act as our version of Britain's State Secrets Act, but it's certainly never been interpreted that way before.

But they're threatening now. I think it's Rep. Peter King [R-N.Y.], who's the chairman of the House Homeland Security Committee, has said it publicly, right?

Yeah. I think we've seen ... quite a pushback in the last week or so after our SWIFT banking story ran, with numerous leaders in the media field [and] national security experts saying, hang on a minute here, did the story really disclose anything that the terrorists were not already well aware of? There have now been a whole slew of stories making the point -- the same way that we debated internally for weeks and weeks -- that there is an almost limitless supply of information from 2001 through the point of our story about the fact that the government is aggressively tracking the finances of Al Qaeda, ... so much so, in fact, that Al Qaeda had started in 2001, 2002 to move money out of the traditional banks. The idea that our story ... gave the enemy some tangible information that they didn't know, I think people are starting now to realize that argument may ring a little hollow.

Well, let me take the other side, if you will: By bringing attention to the way in which this is being done, identifying SWIFT, or identifying [in the second NSA story] that the switches in the telecommunications industry are mostly in the United States if you want to plug in and listen to someone's phone call in Iran or Afghanistan, aren't you putting [terrorists] on notice?

I think the terrorists were already long on notice that this was being done. I think President Bush himself has made that warning over and over again. His top officials, John Snow, in congressional hearings --

-- the secretary of treasury.

The secretary of treasury, right. There were hours-long congressional hearings discussing the fact that we were aggressively monitoring their finances. Why our story, the paper felt, informed and contributed to the public debate was that it got to some core privacy and civil rights issues. It spoke to the fact that the president was secretly using emergency economic powers after 9/11 that people didn't know he was using. In the context of the NSA story, Guantanamo, rendition, secret prisons, this was part of the fabric of an expansive view of presidential authority. ...

We know that long before we learned of this program, SWIFT itself was very concerned about this. They went to the Bush administration, as we said, in 2003, and they said: "We're not comfortable doing this anymore. We feel that we are too exposed legally in this extraordinary operation." They agreed to stay on board only after [then-Federal Reserve Chair] Alan Greenspan, [FBI Director] Bob Mueller and others met with them and convinced them that new controls would be put in place to guard against abuses. ...

The director of the FBI and the head of the Federal Reserve had to meet with SWIFT to calm them down?

Yes, absolutely, as we said in our story.

What about the news judgment around all this? Your argument is that this was well-known to Al Qaeda, well-known because the president has talked about it, the secretary of the treasury has talked about it. ... So why splash it on the front page? Sounds like it's an old story.

I think the fact that the government was aggressively tracking money of the terrorists was no secret. ... But this particular operation and the way that they were doing [it], ... without normal checks and balances, sifting through private banking records with this kind of scope and this kind of emergency economic power being evoked, that was certainly news in the view of the paper. That was not known. ...

There used to be a truce between the press and especially the federal government, the Justice Department, in terms of subpoenas and investigations. It seems that's broken down.

We certainly seem to be moving in that direction, starting with the [Valerie] Plame case ... and a couple of other subpoenas around that same time. The Justice Department tries to go through this balancing act between investigating leaks and the First Amendment, and it's not clear where they're going to come out on this one.

When you get a lead from a confidential source alleging something like this, ... how difficult is it to corroborate the information?

It's very difficult. You're dealing with very sensitive national security information, not a lot of documents floating around. You're having to rely on personal accounts a lot of the time and corroborate those as many places and as many different ways as you can. ...

I called up a member of Congress, and I asked them about a classified program. ... They said, "I'm not supposed to say anything," and they hung up. There seems to be a catch-22, in Congress anyway, in terms of oversight of these programs: that they get briefed, but then they can't talk about it.

Well, sometimes they get briefed, not all the time. ... You have many members of Congress, both Republican and Democrat, complaining that the administration is not telling them what they're doing. It is not following the 1947 National Security Act that requires that the Intelligence Committees be briefed. It was clearly bypassed in the case of the NSA program and also appears to have been bypassed with the banking program.

We've had numerous lawmakers tell us that. Sen. [Dianne] Feinstein [D-Calif.] was on TV saying that she only learned about this program because the Treasury Department told her The New York Times was working on it. ... [Rep.] Barney Frank [D-Mass.], who's the ranking Democrat on the banking subcommittee that clearly would have jurisdiction for a program like this, he was offered an off-the-record classified briefing by the Treasury Department weeks before our story, because we were about to run a story, and he said: "No thanks. I'm not agreeing to those ground rules. You should have told me months or years ago about this program."

I did a story just recently about the Republican chairman of the House Intelligence Committee, Pete Hoekstra [R-Mich.], who is a strong ally of the Bush administration and certainly no card-carrying member of the ACLU [American Civil Liberties Union], complaining in a private letter to President Bush that he might be breaking the law by failing to inform his committee of all the various intelligence activities. Hoekstra then went on TV after our story appeared and said that he took very, very seriously their failure to tell his committee what they were doing. ...

... In that letter that you reported on, he indicated there were other programs. ... You got any idea what they are?

Some suspicions. I think that's kind of a Washington parlor game right now, guessing what it was that he was referring to. But I think, again, the point he was making there, that the Intelligence Committees are not being briefed and that this may well be a violation of the law, is obviously an important one, ... and also that the Republicans in Congress are clearly getting tired of what they see as a pattern in this.

The Republicans are getting tired of reading about the programs that they should have known about in The New York Times, ... the newspaper that they want to have prosecuted for espionage?

Well, it was interesting. ... Hoekstra has come down as hard on the media as anyone else. ... But he says in this case, the whistleblower process worked, because the whistleblowers came to him in Congress and told him [about] programs that he had known nothing about as chairman of the House Intelligence Committee.

But that's a complaint that I've heard from others: Your sources are committing treason. ... They can go to the Intelligence Committee in the House or the Senate, or for that matter anyone who's in Congress, and tell them what's wrong. ...

Well, first of all, there are whistleblowers who will tell you that they have done just that ... and have found that they've been retaliated against or could not find a venue, even in Congress. So whether or not that process works is debatable. There are also whistleblower protections for going to the media -- not as strong as we would like at times, but there are protections in place for that. ...

The concerns that we saw recently from Hoekstra are relatively new. We haven't been in that situation before, where we have the Republican chairman of the House Intelligence Committee going to the president to say, "I heard from a whistleblower that there are classified programs that you're not telling us about, and you may be in violation of the law." That's a new phenomenon.

These leaks or these whistleblowers, are they the result of the administration's unusual policy around secrecy and trying to reassert the power of the presidency?

It's tough to get into the motives and aspirations of all whistleblowers, but I think that it is part of what we're seeing, the idea that a lot of these operations have been conducted in such secrecy, and people who have raised questions about some of these operations feel as if they have been effectively silenced or retaliated against. ...

Is this administration different?

Well, certainly it has the reputation as being secretive even by the standards of the White House. [Times reporter] Scott Shane did stories recently about the National Archives reclassifying documents from the 1950s about Soviet agriculture programs that the intelligence community felt were wrongfully declassified in the first place, and that caused quite a backlash when that came out, because there had been millions of documents that were once in the public record that have now been pulled and reclassified. ...

Before the NSA eavesdropping story, had you ever been involved in a story where the government said, "You're going to damage national security"?

There had been some much lesser-scale episodes. Nothing that reached anything like that level, no. ...

Do you worry that they'll ... show you ... that because you revealed this program, they were not able to do something in a terrorism operation, that someone was harmed?

Well, I think the counter to that argument is pretty clear, which is that both of these operations are still in existence without any impact on their ability to function. In both cases, we were warned that the plug would be pulled on these programs if they're publicly disclosed. That didn't happen in either case.

There are national security experts who will tell you that the deterrent effect ... from the bad guys knowing with even greater clarity that their money is being traced may serve a positive role by driving that money out of the system, as has already been happening for four years anyway. ...

Do you have any evidence that these programs violated anybody's civil liberties, that anybody was damaged?

In the NSA program, that is certainly being contested in the courts right now. There are numerous challenges in civil lawsuits and also criminal appeals over civil rights allegations. Those are going through the judicial pipeline right now. ... And some members of Congress have been pushing for a full-blown investigation of the NSA program just to look at that very question of whether or not there were abuses. This is such a closely held program that we do not know the full answer yet, and we may never know.

With the banking program, we do know, and we printed in our original story, that one member of the team that was reviewing these banking transactions was doing improper searches, so improper that he was pulled from the team and presumably disciplined. Did that violate anyone's civil rights? Without knowing more details about the case, that's tough to say. But certainly, as everyone we talked to acknowledged, the potential for abuse is enormous with this program. ...

You mentioned Dianne Feinstein. Dianne Feinstein said, on the subject of a shield law, that the problem is you can't shield reporters who may be involved in national security stories in particular, and that's why she can't see a blanket shield law for reporters. ...

I haven't heard Feinstein say that, so I'm not sure exactly what distinction she's drawing there. But the press is sensitive to arguments that could hurt national security. We do not simply run blindly with these stories. ... There are times when we say, "Yeah, we could see how that could tangibly give up information that could jeopardize a life or harm national security," and we decide not to publish. ...

You say the paper's very responsible. Walk us through the process here: Do you have to identify your sources to someone at the newspaper?

The paper has now a set policy whereby at least one editor is aware of who the sources are. All newspapers in the last few years have gotten more stringent about that as a result of problems that came up elsewhere. ...

But how does that work if you're talking to somebody in the Justice Department or in the CIA, and they said to you, "Well, I'll talk to you, but this is all off the record," or, "This is all on background," and then they don't say anything that's that worthwhile? ...

No, it's generally just what appears in a story that's attributed to an unnamed source that would be run by an editor. If you just have a conversation that doesn't make it into the paper, no. You might offer that up just in a conversation about stories with an editor, but it would not be the same hard and fast rule. ...

I'm thinking of my own experience. There are people I know in Washington and elsewhere, where over the years I've just gotten so familiar talking with them that we assume it's all off the record, because there's no other way for us to, in a sense, legally talk freely. You have relationships like that, I assume?

Yeah, I think that's fairly common in Washington, that if this is someone you have an ongoing relationship with, you understand the ground rules.

Is your relationship to a source sort of the way it was portrayed in All the President's Men? -- somebody writes a little note on your newspaper; you see that, and then you should be in the parking garage? How does it work?

We're not usually that clever. I wish we were, but it's oftentimes a lot more run-of-the-mill. But no, no real spy craft.

We have to use some spy craft now that first of all, you've become relatively well known as a reporter in the national security area, and there are leak investigations going on. For instance, you don't whether your phone is tapped, right?

I don't know is the short answer. ... Is it possible? Sure, I guess. There have been stories in the media the last few months about our reporters' phones supposedly being traced -- ... not necessarily tapped, but the phone numbers traced. So sure, that's a concern. That's always a concern.

In [special prosecutor] Pat Fitzgerald's investigation, they pulled at least government officials' call sheets and were able to trace who they were talking to. ... You've got to assume that's happening with you.

Yeah, I think it's a reasonable suspicion, yes.

How does it feel to be part of the story?

I'd just as soon not be. I like reporting the news; I don't like being in it. Reporters want to be the fly on the wall. You don't want to be in the center of the story.

Has it gotten you more sources?

Yeah, I suppose at times. Some people might pick up the phone a little quicker; other people may not. It cuts both ways.

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posted feb. 13, 2007

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