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norm pearlstine

As editor in chief of Time Inc. until January 2006, Norm Pearlstine made the decision to turn over Time magazine correspondent Matthew Cooper's notes to special prosecutor Patrick J. Fitzgerald during the Valerie Plame investigation. In this interview, Pearlstine outlines the Supreme Court precedent and issues of "institutional accountability" and national security that influenced his decision to cooperate with Fitzgerald. This is an edited transcript of an interview conducted on April 24, 2006.

... [What is your job?]

I've been the editor in chief of Time Inc., which is the magazine division of Time Warner, and that includes Time magazine, but 154 other magazines as well.

And before that you were the executive editor of The Wall Street Journal.

I was managing editor and executive editor of The Wall Street Journal.

So what do you tell your reporters, your writers [about sourcing]? Are there any rules? ...

... Let's be realistic about it. You pick up the phone; you interview somebody. You're midway into the conversation, and suddenly your source says to you, "Can we go off the record?"

Most reporters at that point, their ears perk up and say, "Oh, I'm actually going to get some good information as opposed to the stuff I've been hearing so far." The last thing you want to do is chill that conversation by getting into a lengthy discussion and argument about exactly what the ground rules are.

I would suggest that at that point, you continue taking your notes and doing your interview, but that before you go to publication or before you go on air, you go back to your source and discuss with the source exactly what the ground rules are and be as precise as possible about how you want to use the information and what protections you're able to give. If you can't reach an accommodation on that, then you probably shouldn't use the information.

... In real life, what happens is you call up a source or someone calls you up and you have this conversation and either they say, "I need confidentiality," or "It's off the record."

Well, they say, "Are you going to protect me?"

Right. And once you have that information, it's hard to go back later on and say, "Well, you know, I've been working off this information for the last three weeks and --"

Well, I think you can go back and say, "I'd like to go over with you how we're going to use this information and how you expect it to be used." I think it's very rare that you're involved in a conversation, you hang up the phone, and you immediately go on the air or you immediately write, particularly when dealing with confidential sources.

“We are committed to protecting confidential sources. ... But I think you also have to recognize that when the circumstances come together, as they did in the Cooper/Plame/Rove case, that you might make one decision that you wouldn't make another time.”

Almost always there's a process that goes on where you discuss the information with an editor. You think about the value of it; you decide how you want to use it.

I frankly think we've overused off-the-record information, information that hasn't been for attribution. We don't work hard enough to get secondary sources to confirm information from anonymous sources. One of the things we really owe both our sources and you owe our readers or viewers is more transparency into exactly what the information is and how we got it.

How did you find out about the Valerie Plame Wilson imbroglio? How did it first come to your attention?

It first came to my attention when we ran a story on Time's Web site on July 17, 2003, that confirmed a story that Bob Novak had published three days earlier identifying Valerie Plame as the wife of Joe Wilson, who had written the op-ed piece in The New York Times about the Bush administration's assertion that Saddam was seeking yellowcake in Niger to build atomic weapons. I first learned about the sources after [Patrick] Fitzgerald was named special counsel and at the time that [Time reporter] Matt Cooper received his first subpoena in May of 2004.

So in the context of what you were just describing -- the rules, confidentiality and background and so on -- how did you think this information was gathered? The article that was on Time's Web site, for instance, didn't cite named sources.

That's correct. ...

Was there any understanding at an editorial level what kinds of promises were being made?

First of all, as editor in chief of Time Inc., I would not typically get involved prior to preparation of a story for Time magazine's Web site growing out of a conversation with a White House official.

In my own mind, from the outset, the story of Valerie Plame was really an example of day-to-day business as usual in Washington, the kind of interactions between journalists and government officials that have been going on for decades.

I was frankly surprised that there was so much demand for a special counsel to investigate. I was surprised when a special counsel was named and did not really see any evidence that any law had been broken in those conversations. And I was surprised when we got a subpoena. So all of this has been quite novel to me.

Surprised because you just thought this was the way things go and this is how you report in Washington?

Well first off -- not only in Washington. Leaks and use of anonymous sources is very much in the fabric of American journalism today. The places where it's most obvious are in Washington and Hollywood, on Wall Street and in sports.

And Washington probably leads the pack, because we've gotten to the point now where officials at agencies or within the White House are really reluctant to say anything on the record and are always asking for anonymity. So the conversations that Matt Cooper was having with whomever about Valerie Plame's identity did not strike me as out of the ordinary.

When I did get around to looking into the specifics of it, I tried to figure out what possible law could be broken. The Intelligence Identities Protection Act of 1982 seemed to me designed for a very different purpose than for going after someone who might have mentioned that Plame worked at the CIA. The Privacy Act seemed like a stretch to me, and in any case had not really been used to go after reporters for their sources. I was frankly trying to figure out why a special counsel was needed, what the law was that was broken, why a grand jury was called, and why we were being subpoenaed. ...

In our own reporting, it appears that the FBI investigation -- this is before Fitzgerald was appointed -- had concluded the same thing. There was no violation of the agent identification act.


So this became one of these situations where a special prosecutor, if you will, created their own crimes?

That's, I think, an unfair characterization. I think special prosecutors as well as the FBI, as well as the Justice Department, think that lying to a grand jury, lying to an FBI agent is a serious crime that ought to be pursued seriously, so I'm not necessarily against pursuit of that kind of thing.

I'm just saying that when it all started, when I read Novak's piece, when I saw our piece online, this did not strike me as being particularly different from the kinds of stories that get leaked all the time in Washington. During the Pentagon Papers, Max Frankel [of The New York Times] filed a quite remarkable affidavit explaining how Washington works and the ways in which leaks are really the coin of the realm, and I think nothing has changed in the 35 years since then.

You say you were surprised when you got a subpoena.

Yes. I was surprised that the special counsel felt the need to go after journalists. I recognize in areas involving confidential sources, quite often the reporter and the source are the only two people who are likely to have that information, so it isn't as though there are lots of third parties you can go to. But nonetheless, since I didn't know that there was a law that had been broken, I didn't know why we'd received a subpoena.

You weren't alone, though.

No. There were a number of people who received subpoenas: Tim Russert at NBC; Glenn Kessler and Walter Pincus at The Washington Post; Judith Miller at The New York Times. Those are the ones we're aware of. I don't know whether Novak received a subpoena or not.

When you get a subpoena like that, and others reveal that they've gotten subpoenas -- you know many of those people; it's a small world -- do you get together and talk about it? You've all gotten subpoenas for the same investigation.

We didn't in this case. The way things played out actually at the time that Matt Cooper got his subpoena, we were trying to figure out what they were looking for, and initially we resisted that subpoena, as we typically would, in an effort to protect our sources. It turned out that they were particularly interested in Matt's conversations with [then-Chief of Staff for Dick Cheney] Scooter Libby and that those conversations, in our view, were probably exculpatory.

Matt didn't think that Libby had told him [anything] that led to the outing of Plame. So Matt's and our lawyer, Floyd Abrams at that time, had a conversation with Libby's lawyer that said, "Given that Matt would be willing to testify that Libby did not say anything about Plame by name, did not identify her, would you be interested in his testifying before the grand jury?" We got what we thought was a personal waiver that was different from the waivers that Bush had compelled all of his White House people to adhere to. ...

As you know, after Matt testified about his conversations with Libby, the special counsel came back to us and said: "Well, on the basis of your testimony, we think there's some other sources we'd like to know about. So despite the fact that you've testified for three hours, we'd like to still bring you in to talk to the grand jury under oath again." And we again resisted that. ...

Well, I guess the question is, looking from the outside at least, when you're dealing with a prosecutor, especially a special prosecutor, and one with a reputation for being aggressive and thorough and tough --

He is all that.

-- don't you want, as the news media, to approach him in some unified way?

There are a couple issues with that. One, we didn't necessarily know who else he was talking to. We'd heard that he'd interviewed scores of people, so I didn't know whether that involved a lot of reporters or just a few.

Secondly, the kinds of information that he was seeking didn't necessarily show a pattern. For example, Judy Miller had never written anything that we were aware of, so we couldn't quite figure out what the interest in Judy Miller was. Tim Russert's statement following his testimony suggested that he was asked what he had told Libby, and at the time I thought that was a typo. I didn't understand that that was actually significant, because I couldn't figure out what Russert would have to tell Libby or why that would be of interest to a special counsel who was trying to figure out who had outed Valerie Plame. ... The Washington Post was pretty vague about what Kessler and Pincus testified to, and to this day I'm not exactly sure what they've talked about. ...

I guess what I'm getting at is that it appeared that each newspaper, each individual within that, or broadcaster, was sort of trying to deal with Fitzgerald on their own. ... Doesn't that weaken your position, because if you had all gotten up, the thought is, and [said], "We're not cooperating in this kind of fishing expedition where we can't figure out what you're after until you define what it is you're after"?

Yeah. Well, with the benefit of hindsight, you may be right. That did not cross any of our minds at the time, I think, because we didn't really have enough of the sense of where the investigation was going.

The other thing that we've all had in the back of our minds and we've all had to deal with is, as much as you want to keep your sources confidential, we know that there's a Supreme Court ruling from 1972 [Branzburg v. Hayes] that's never been overturned, where the Court has specifically ruled that when it comes to a grand jury, journalists don't have any privilege. So the question of how you respond to a subpoena to appear before a grand jury becomes one that I think we all end up having to take pretty seriously. ...

Because of this Supreme Court decision, you gave up Mr. Cooper's notes.

That's correct. Is there a question?

Well, some people think that by doing that, you made the general defense of confidential sources and information related to those sources and the possession of the employer, the owner, much more difficult.

First of all, I think one has to distinguish the Judy Miller case from our own in that The New York Times was never held in contempt. It was subpoenaed initially but said it had no documents, so they were not in the situation that Time Inc. was in of having been held in civil contempt.

Secondly, there was an institutional issue in that our reporter had put Karl Rove's name, his source, into an e-mail that several dozen people had access to. And that created institutional issues for us. And where I think that [former New York Times counsel] Jim [Goodale] and I have a disagreement is that I think it's very difficult for corporations to engage in civil disobedience and Jim believes that it's a First Amendment obligation of publishers to do so.

It was not a happy day to turn over the notes to the special counsel. I've said that it's the most difficult decision I've had to make in more than three decades in journalism, and I say that with the understanding that lots of people whom I respect and admire would disagree with me. ...

You didn't think there was an option for the corporation to simply say, "We're not complying"?

Well, first of all, I'm unaware of any case, really in the last several decades, where any media company has defied a Supreme Court decision. And I consider the denial of cert, the refusal to hear our petition, as the equivalent of a Supreme Court decision. Supreme Court ruled that Branzburg still was in place, that reporters do not have a privilege and that we therefore could be held in contempt.

Then the second question is, do you defy the Court and say, "This is civil contempt. The purpose is to coerce. We're going to ignore that contempt citation"? I did not think in this case that was the appropriate way to go. ...

Here's what we asked [former New York Times counsel] James Goodale: "Mr. Pearlstine turns over all of Matt Cooper's notes." And he says: "Disgraceful, absolutely disgraceful. I've talked about this with Norman. ... I would say Norman Pearlstine is -- or was at the time he turned these over -- the editor in chief of Time's magazine division, which has a zillion titles. He was in a very difficult political position in real life because he had to go to his board of directors, who are not First Amendment-niks," as he put it, "and maybe not even media people who know a lot about media, and tell them he's going to go in civil contempt. I think as a practical matter, that's very difficult for him."

Well, as usual with Jim, a little learning is a dangerous thing. I never went to the board. I never went to the CEO of Time Warner. I never went to the CEO of Time Inc. I made the decision on my own in my capacity as editor in chief of Time Inc. under a document called "The Role of the Editor in Chief" that I wrote in 1997, that was approved by the CEO and the board of Time Warner.

I have an extraordinary level of editorial independence, and it was my independent decision that, in these circumstances, the appropriate thing to do was to turn over our notes after the Supreme Court denied our cert petition. The reasons for that are several.

I think that even The New York Times, if not necessarily Jim Goodale, would acknowledge that a reporter's privilege is not absolute in its editorial. When Judy Miller went to jail, it said that when troop movements were known, for example, a confidential source might not be respected. We have examples of journalists who have made independent decisions to reveal confidential sources; [for example], Jon Alter, when he thought that Ollie North was lying about tactics involved in capturing the Arabs who had thrown [wheelchair-bound Jewish passenger] Leon Klinghoffer overboard on the Achille Lauro.

Once you've decided that the privilege is not absolute, it seems to me that you have to apply a balancing test as to when you decide to adhere to a Supreme Court decision and when you decide you want to defy it. In this particular case, involving a grand jury, involving a question of national security, involving White House officials who are not traditional whistleblowers, but if anything, were trying to undermine a whistleblower and a situation where the name of the source was in our e-mail and available to several dozen people within Time Inc., it seemed to me that, as an institution, we had no choice but to turn over our notes in this case.

But it's not for the reasons that Jim suggests. There was no corporate pressure. ...

And the fact that it's a publicly traded company, that you have shareholders that the company has to answer to in one form or another, and that you might be threatening some of the profitability of the company if you were to resist, not just in fines, but possibly additional sanctions from the judge, that didn't enter into your mind?

Well, first of all, I made a decision based on a civil contempt citation. I think the kinds of things that Jim is talking about might prevail if criminal contempt were the issue. If there had been a trial on criminal contempt and we were found criminally liable, then I think you probably, as a publicly held company, ... would require resolution from a board of directors before you could defy a court. …

I think, personally, that sophisticated investors in media, which would be the large institutional investors, assume that one of the costs of doing business for a media company is that you vigorously defend yourself in litigation, be it civil or in a case such as this.

Frankly, the financial exposure never entered my mind. I think it would have been relatively small for a division of $5 billion in revenues and that we could have withstood the financial penalties if that were the issue.

I didn't think that was the issue. I do think there's an issue of institutional accountability. I do believe that corporations have a very difficult time justifying engaging in civil disobedience. It's different from an individual's right of civil disobedience, and I think that, for the reasons that I've articulated, that this was a case where the right thing to do was to turn the notes over to the special counsel.

I'm trying to summarize the Goodale critique. The Goodale critique, as I understand it, is we have a situation here where multiple organizations who all profess the same, if you will, idealistic stance in terms of the First Amendment and protecting sources, wind up having different defenses, handling the situation on their own and making different decisions, all of which in the end come down to giving up their documents and giving up their reporters as witnesses.

Well, I think that individual organizations have different points of view about the law and whether they're going to obey it. Different organizations have different fact situations that have to be taken into account. ...

The place where we need a united front is in trying to get a federal shield law. That's a place where, in fact, many of us have come together, given all the problems with a shield law, all the hesitations you might have about whether it leads to licensing, all the issues of defining who's a journalist and so forth. ...

But would it even have worked in the federal level, a law? This is allegedly national security. You're going to have to have some out in your shield law.

Well, one of the things you could have litigated at that point was whether, in fact, national security was an issue. As you know, a problem that we had in this case was that we were never able to find out from the special counsel the basis for seeking the information.

The Court of Appeals' opinion in Judge [David] Tatel's concurring opinion has eight blank pages where the special counsel lays out the rationale for why he needs this information. That's very troubling to me, and that's something that I wish the Supreme Court would have been willing to hear, was an important part of our petition to it. ...

I don't think that the government and the press always have to be in an adversarial relationship. There are times where reporters are asked for information by law enforcement authorities, and reporters are happy to talk about information that may not involve confidential sources. Let's say you've witnessed a crime as a reporter and so forth. That happens all the time. So I don't think that, by definition, our relationship with government necessarily has to be adversarial.

That said, the reason we're called before the state, and what we have from the First Amendment, is the ability to investigate, to criticize, to comment upon the branches of government. And we want to do that.

The idea that all of us as journalists, having received these subpoenas, would somehow get together and come up with a common position with regard to defiance of the subpoena, probably is unworkable, because if the subpoena asks for things that you're happy to give up, if the subpoena asks for information about a witness who in fact would like you to testify, why would you want to ignore that?

It's only when the special counsel or any law enforcement official or any plaintiff's lawyer is asking for information where you really feel a need to protect your source, where you think that doing so is in the public interest, where you think your source's livelihood, reputation, possibly life, is at risk, that you want to resist every effort to use the courts to get the information about that source. ...

Put on your journalism hat for a moment. Now you're in a situation where journalists are lining up, getting ready to testify.

Yeah. I think the Libby case is a very tough case. We're resisting every one of Fitzgerald's efforts to subpoena additional information from us and to try to get into our notes and so forth. We don't think it's required. We don't think it's necessary. We don't think it's appropriate.

There are a whole bunch of cases that are going on right now that I think are very serious in the ways that they impact on our ability to do our jobs. Frankly, the Wen Ho Lee case, [in which a Los Alamos scientist was accused of spying for China], which is a civil suit, where the same Court of Appeals that ruled against us in the Matt Cooper case has decided that reporters have to testify in the lawsuit when Wen Ho Lee has sued the federal government under the Privacy Act. That case, to me, is in some ways far more troubling than the Valerie Plame case.


Well, for one, it's a civil suit, and if forced to testify, it will encourage every plaintiff's lawyer to want to pursue the confidential notes of every journalist.

I think, secondly, that it's by no means clear in this case that these are the only people whom Wen Ho Lee can interview to try to ascertain who leaked information from the federal government. So I just think it's totally different from a grand jury under a special counsel pursuing an investigation that was sanctioned by the Justice Department. ...

You have to weigh every one of these cases and take a look at it and decide which ones are worth fighting, which ones are worth resisting. We are committed to protecting confidential sources. And we've run a ton of stories since the Supreme Court denied our cert petition last June that could not have been done without confidential sources. You can't do a lot of journalism without them. But I think you also have to recognize that when the circumstances come together, as they did in the Cooper/Plame/Rove case, that you might make one decision that you wouldn't make another time.

Isn't there ever going to be a time where you have to draw the line?

Yeah, of course there would be.

Where you would engage in civil disobedience?

Yeah, exactly. I would say some of the things that would help would be not having the name of the source in an e-mail that some 30 people have.

So have you told your reporters now at Time: Don't put your names in the e-mails?

We said don't put confidential sources in any electronic communication. That would help, because then, if you will, the people who know the source would be limited in number and would be in a position where, if they wanted to engage in individual civil disobedience, we would respect and condone that.

Mr. Pearlstine, I can hear reporters saying, "It's OK for me to go to jail, but not you?"

On the contrary. If Matt Cooper and I were the only two people who knew Karl Rove's identity, I think we both would have refused to testify. ...

In the wake of all of this, what's your reaction when you hear that the CIA has now requested investigations of reporters for leaks, not just the sources of the leaks, but in the words of the CIA director [Porter Goss], his desire to see reporters testifying in the well of the court?

Well, I think we have to resist that, just as we resisted many other attempts by government to try to get information from our confidential sources. ... Government officials tend to not like leaks unless they are responsible for doing the leaking.

You think that they're trying to have it both ways?

Sure. Of course they are. But so does every administration. On the one hand, we're outraged that anyone would leak to [New York Times reporter] James Risen or to The Washington Post information about the NSA [National Security Agency] or about CIA torture camps. On the other hand, unilaterally, the president can declassify information and instruct the vice president's chief of staff to leak that information to selected reporters.

Let's back up for a minute. Your reporter, Matt Cooper, he wasn't happy with your giving up his notes.

He disagreed with me. He wished that I hadn't done so. From his perspective, it was frankly my hope that by turning over the notes, they would not feel a need to go after Cooper and require his testimony. He wasn't happy about it.

He viewed his conversation with Rove as a confidential exchange that ought to be protected. He disagreed with me about it. And I think he would have been prepared to go to jail himself -- had he not gotten the waiver from Rove the morning that he was supposed to testify or supposed to go back into court in front of Judge [Thomas F.] Hogan not to testify.

But do you see a pattern here between this incident, the Plame case and going to all of the related Libby indictments, and then you mentioned the Wen Ho Lee case? And now there's a CIA leak case. And then there's this AIPAC [American Israel Public Affairs Committee] case going on, which has to do with leaks of information as well to civilians. Something's happening here.

I haven't done an analysis of how many efforts there have been over the years to gain information from confidential sources. Certainly in the early '70s, there was a lot of it going on. It seems to me that over the last year there have been some very high-profile and highly visible cases, and I think some of them are very disturbing for the press. ...

Was it wrong for Judy Miller to go to jail?

I can't speak for Judy because I don't know the specifics. I respect her decision as a matter of individual conscience to decide to keep her source confidential. What she said at the time was that she did not have a waiver that she thought was voluntary, and therefore she could not testify. I respect that decision on her part.

But you wouldn't have advocated it?

I don't know that that's the case. Again, she was an individual and not representing an institution. I think that a journalist has an absolute right as a matter of individual conscience to make that decision. Civil contempt is meant to coerce. It's not a criminal finding of wrongdoing. And I think any journalist who chooses to resist that, one has to respect.

Does the epidemic of subpoenas that's been described to us by people in this field that are going on right now remind you of Nixon and the period of Branzburg?

Yes. And I think there is the potential for a chilling effect on journalism. ...

Are your reporters reporting back that their sources are less likely to talk now that people want better ironclad agreements that you aren't going to give them up?

I think that there's potential for that to happen if this trend continues. I can say with confidence that Time magazine has been able to do some extraordinary journalism over the last year that relied heavily on confidential sources who thought that we would protect them. ...

The Cleveland Plain Dealer [killed a story because it] didn't want to take the risk of being in this kind of litigation and putting itself at risk, seeing what was going on in Washington.

Sure. The reason we litigated this case for well over a year, the reason we spent as much money as we did on the finest legal talent we could find, was that our hope was the Supreme Court would take the case and use it as a time to reverse Branzburg. Nothing happened since 1972 with Department of Justice guidelines, with changes in federal rules of evidence, with cases that had granted privilege to clergy, to psychotherapists and so forth; that our hope was that the Court would take the case and reverse it. The fact that we got state attorney[s] general from 35 jurisdictions to sign a friend-of-the-court brief in our support suggests that the whole area of ability of reporters to keep their sources confidential is under extraordinary strain and pressure, and that this a very tough time for us. ...

[Does the Bush administration have a different attitude toward the press?]

I think there's been an adversarial relationship between the press and different administrations. ... It was not easy to interview Hillary Clinton on Monica Lewinsky.

I think what's different here is that we've been in a war for the last few years that has not gone the way that the administration had hoped it would, and that has made the media more aggressive in its coverage and, I think in the administration's view, more hostile. So the administration has been less cooperative than we might like it to be.

Certainly the existence of 24-hour news networks, of bloggers, creates a plethora of outlets that has changed things somewhat considerably, and in some cases, the administration has thought it could go around mainstream media to find out outlets that it thinks will be more sympathetic. Therefore, it hasn't had to really respond to some of the reporting and certainly some of the editorializing in some of the big newspapers and so forth. The administration, the daily press conference has gotten to be an exercise in jousting rather than a place where much usable information comes out.

I don't just mean the adversary relationship, [but] reclassifying documents, not providing information. We hardly see any, for instance, Cabinet-level officials holding press conferences.

Correct. I think that this administration has certainly wanted to communicate with the American people in ways in which they can channel the message far more easily than they can going through a vigorous, aggressive questioning press. I think it's true of all administrations. I think this administration has been more rigorous in that respect than others partly because it's been more disciplined, partly because it has been so much on the defensive since going into Iraq. ...

[In the future,] who's going to pay for journalism?

First of all, it's a very good question that all of us are struggling with. The newspapers have been on the front end of it for a lot of reasons, not the least of which is that the Internet is a greater threat to newspapers than it is to magazines.

That said, there are still opportunities to do journalism and to figure out a way to do it profitably. I don't want to be too harsh on the newspaper world, because I know the problems are real when your classified-ad base gets attacked by a Craig's List or a At the same time, we have not seen a whole lot of innovation in the newspaper industry in a long time. The last major change in newspapers was USA Today, and I think that was 1982. Most newspapers in cities tend to have been monopoly operations for a long time that haven't really felt competition, and I think they've been slow to react to a whole lot of competition that's come along in a short period of time.

But even you, sitting where you are, let's say at Time, are dependent on the Los Angeles Times, The New York Times. ... What I'm getting at is, is that the news-gathering ability of American news media is shrinking.

Well, on the one hand it's shrinking. On the other hand, I grew up when there were three television stations in Philadelphia and you had a half-hour a day of news on Channels 3, 6 and 10. ... But today you have different kinds of information. I'm able to get information online that I was never able to get. I have areas that I'm interested in that are different from The New York Times or the L.A. Times. So in some respects, I find I have better sources of information than I ever had.

The second thing I guess I would say is that I've had the luxury over the last year to serve as a judge of the Nieman Fellowships as well as the Asia Society's Osbourne Award for best coverage out of Asia. And as much as I can sometimes get depressed about the business, I was knocked out by the quality of the journalism. So [there's] still an awful lot of great work being done.

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posted feb. 13, 2007

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