Media Nation

It’s hard to know what to make of handwritten letters purportedly sent last winter by Superior Court Judge Ernest Murphy to Boston Herald publisher Pat Purcell after the paper lost a libel case to Murphy.

Herald lawyer Bruce Sanford calls the letters “a stark and sad attempt to bully the Herald” into abandoning its appeal of the $2.1 million judgment. Murphy’s lawyer, Howard Cooper, tells the Boston Globe that the letters were merely part of an ongoing attempt by Murphy to reach a settlement with Purcell.

This much is certain: If Murphy’s letters are typical of what takes place between parties in a lawsuit, then the legal sausage-making process is a lot uglier than many of us realize.

I’ve been sympathetic to Murphy, although I never thought the Herald libeled him. By conducting a campaign of vilification against Murphy in 2002, portraying him as a “heartless” and “wrist-slapping” judge who “demeaned” victims of crime, the Herald irresponsibly harmed Murphy. Among other things, the judge’s family was subjected to threats of violence.

But Murphy is a public official. And under the U.S. Supreme Court’s Times v. Sullivan standard, a public official must prove that a news organization acted with “actual malice” in order to win a libel case — that is, that the news organization published information it knew was false, or that it acted with “reckless disregard” as to whether it was true or false. There is no evidence of that.

The Murphy trial turned largely on the question of whether Murphy had said of a teenage rape victim, “Tell her to get over it.” Herald reporter Dave Wedge’s only eyewitness source, former prosecutor David Crowley, testified that Wedge didn’t get the quote quite right — his recollection was that Murphy had said, “She’s got to get over it” — but that Wedge had captured the “gist” of it. And Bristol County District Attorney Paul Walsh testified that Crowley considered Murphy’s remarks to be insensitive.

Even though there were several inaccuracies in Wedge’s reporting, it’s hard to see how, given those circumstances, that Wedge could be credibly accused of acting with reckless disregard for the truth, which, legally, requires him and/or his editors to have harbored serious doubts about what they were reporting. In fact, Wedge clearly believes to this day that his reporting was substantially true, Murphy’s denials notwithstanding. And it’s possible that Wedge is right.

But enough of the back story. The Herald today publishes the text of Murphy’s letters and graphic images of them. Assuming they are real — Purcell and his lawyers obviously believe they are genuine, but there’s no indication of what steps they took to verify them — they portray a very different Murphy from the devastated man who sued to get his good name back last winter. Here’s a fascinatingly repellent excerpt about a meeting Murphy wanted to have with Purcell. The letter is dated Feb. 20 — two days after the verdict:

Here’s what will be the price of that meeting. You will have one person with you at the meeting. I suggest, but do not insist, that such a person be a highly honorable and sophisticated lawyer from your insurer.

Under NO circumstances should you involve Brown, Rudnick in this meeting. Or notify that firm that such a meeting is to take place. [Brown, Rudnick represented the Herald at trial.]

I will have my attorney (either Owen Todd or Howard Cooper) at the meeting. The meeting will be AB-SO-LUTE-LY confidential and “off the record” between four honorable men.

You will bring to that meeting a cashier’s check, payable to me, in the sum of $3,260,000. No check, no meeting.

You will give me that check and I shall put it in my pocket.

Wow.

Now, granted, the release of these letters raises more questions than answers. Here are just a few:

1. What steps, if any, did Purcell take to authenticate the letters? In today’s Globe story, Howard Cooper seems to accept their authenticity, and on the surface there’s no reason to doubt them. But all of us in journalism have become more sensitive to possible problems with documents during the past year. Remember, Scott McClellan didn’t doubt the authenticity of the National Guard letters, either.

2. If Murphy’s letters are the blockbusters that Purcell wants us to believe they are, why did he not release them until yesterday as part of an effort to have the verdict against the Herald thrown out? The verdict, after all, has been hanging over the Herald since last spring. At the very least, it creates the impression that Purcell didn’t think the letters were particularly out of line at the time.

3. Why did Murphy, in his letter, demand $3.26 million? According to this Feb. 19 story in the Globe, the full cost of paying off the verdict was estimated to be in the neighborhood of $2.7 million, which would be the $2.1 million verdict plus interest. How could the cost rise by another $500,000 almost overnight?

Last night, at Boston Mayor Tom Menino’s annual Christmas party, word rippled through the Parkman House about the Murphy letters, which were unveiled at a news conference that evening. Since none of us were actually at the news conference, we traded rumors about what they might contain. Now we know.

I’m not going to speculate on their significance. But I remain troubled by this case. At root, the Herald’s reporting on Murphy — as irresponsible and over the top as it was — amounted to criticism of a public official for the manner in which he performed his government duties. Such speech demands the highest possible level of First Amendment protection.

Unlike an ordinary citizen, Murphy had numerous avenues by which he could fight back, as he showed by giving a no-holds-barred interview to the Globe in response to the Herald’s incessant attacks. Just as Wedge appeared on “The O’Reilly Factor,” so, too, could Murphy have invited himself on. This is Oliver Wendell Holmes Jr.’s “marketplace of ideas,” which is vital to public discourse in a democratic society. (Well, O.K., not “The Factor” per se.)

Instead Murphy, a judge, went to court in an attempt to silence his tormenters. And now he’s even trying to freeze the financially ailing Herald’s assets in order to preserve the judgment he won.

I don’t believe Judge Murphy “heartlessly demeaned” victims of crime. I’m appalled that he would come under such heavy attack for believing that, in some cases, justice should be tempered with mercy. But though I don’t think he should have been accused of conduct unbecoming a judge in 2002, I certainly think the label fits today.

More: NECN has an in-depth report that includes a good chunk from last night’s news conference and a long interview with Howard Cooper. Click here and choose “‘Herald’ levies serious charges against judge.”

Media Nation is reliably informed that New York Times reporters James Risen and Eric Lichtblau, who broke the NSA spying story last week, are both alumni of the Los Angeles Times. Indeed, Google searches instantly reveal L.A. Times bylines for both. Could that be a factor in James Rainey’s L.A. Times story today?

On a day that the New York Times has broken yet another important story on the Bush administration’s war against civil liberties, the big question remains: Why did the Times wait more than a year before reporting that the White House was using the National Security Agency to conduct no-warrant wiretapping operations inside the United States, in possible violation of the law?

The Los Angeles Times takes a crack at answering that question today, and the findings are not pretty. James Rainey reports that anonymous sources inside the newsroom have told him that top editors considered running the NSA story before the 2004 presidential election but decided against it. Moreover, Rainey continues, one of the main reasons the New York Times finally decided to go with the story last week was so that it wouldn’t be scooped by a soon-to-be-released book, “State of War,” written by its own reporter, James Risen. (Risen’s was the lead byline on last Friday’s story.)

Rainey’s anonymous sources are directly contradicted by New York Times executive editor Bill Keller, who is quoted as saying:

The publication was not timed to the Iraqi election, the Patriot Act debate, Jim’s forthcoming book or any other event. We published the story when we did because after much hard work it was fully reported, checked and ready, and because, after listening respectfully to the administration’s objections, we were convinced there was no good reason not to publish it.

Still, Rainey’s article is certain to enrage partisans on both sides of the ideological divide. For Democrats, Rainey has raised the possibility that the nation’s leading newspaper (if that’s what it still is) killed a story that might have put John Kerry over the top last November. For Republicans, it looks as though Keller’s willingness to abide by the Bush administration’s national-security concerns was operative only so long as he wasn’t going to be made to look foolish by Risen’s book.

Based on what we know so far, it seems transparently true that the conservative critique is weak and contradictory. President Bush has been entirely unable to articulate a legal rationale for his actions, brazenly attacking those who leaked the existence of the spying program as unpatriotic, even though he may very well have broken the law by engaging in it in the first place.

As numerous observers have pointed out, and as Charlie Savage reports in today’s Boston Globe, all Bush had to do was seek warrants from a secret court under the terms of the Foreign Intelligence Surveillance Act — and such warrants are rarely turned down. He even could have sought warrants after the fact in emergencies. Yet here’s an example of the disingenuousness Bush offered at his news conference yesterday:

My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy.

You’ve got to understand — and I hope the American people understand — there is still an enemy that would like to strike the United States of America, and they’re very dangerous. And the discussion about how we try to find them will enable them to adjust. Now, I can understand you asking these questions and if I were you, I’d be asking me these questions, too. But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.

This all sounds reasonable unless you keep in mind the fact that Bush easily could have carried out the spying program in a way that would be indisputably legal. That’s why the normally deferential Tim Russert became so exasperated with Secretary of State Condoleezza Rice on “Meet the Press” this past Sunday, as she continually brushed aside Russert’s questions about why the White House didn’t simply follow the law.

“This is a case where if people commit the crime, then thousands die,” Rice responded. And: “[I]t is the president’s obligation within the law and within his constitutional authority to get the information that he needs to detect an attack and to act against it before thousands of people die.” And: “We’re in a war where if we allow people to commit the crime, then thousands die.” Well, yes, Madame Secretary. But why did the president risk violating the law rather than simply seek secret warrants? Rice: “I am not a lawyer.”

Today’s New York Times story about the FBI’s spying on domestic activists — written by Eric Lichtblau, who shared the byline with Risen on last week’s NSA article — reveals, among other things, that the FBI is very, very concerned about the Catholic Workers’ “semi-communistic ideology.” It’s a story of crucial importance, yet the Times hardly covers itself with glory. As Lichtblau notes, his reporting is based on documents obtained by the ACLU under the Freedom of Information Act, “provided to The New York Times over the past week.” A handoff, in other words.

As I wrote earlier this year, the FOIA — once a staple of investigative reporting — is now more effectively used by the ACLU, Common Cause and other public interest groups, which have the armies of lawyers that the media lack in order to keep pressing the courts to force the secrecy-obsessed White House to turn over public documents.

Of course, the White House isn’t the only institution that’s obsessed with secrecy. So, it would appear, is the New York Times, which has been as transparent as a pit full of muck on why it waited so long to publish the NSA story. It seems we can’t go more than a couple of months without a Times scandal. But we need to get to the bottom of this. Public editor Byron Calame is not scheduled to write again until Jan. 1. Can we wait that long?

WBZ Radio (AM 1030) talk-show host Paul Sullivan, who succeeded the late David Brudnoy last year, is staying put. Sullivan — who hosts one of the few civil, locally oriented shows still on the air — will continue with his 8 p.m.-to-midnight shift now that Jay Severin is sticking with WTKK Radio (96.9 FM). Herald coverage here; Globe coverage here.

To recap: the reptilian (thanks, John) Severin had been a ratings hit on ‘TKK’s afternoon-drive-time slot for the past several years, but disappeared from the airwaves this fall after he signed a national-syndication deal with Infinity, part of the CBS network. ‘TKK is owned by Greater Media; WBZ is owned by CBS. That prompted speculation that CBS would saddle ‘BZ with Severin. Fortunately, that didn’t happen.

Meanwhile, WTKK has been left with the worst of all possible worlds. The station has replaced Severin with the unlistenable Michael Graham during drive time, and will be broadcasting Severin during a time slot (7 to 10 p.m.) when the potential audience is much smaller — and when his competition will not be Howie Carr but, rather, the Tom Ashbrook rebroadcast, Christopher Lydon and Sullivan, as well as Todd Feinburg’s new local program.

Severin may pull some numbers, but it’s not going to be like before.

The Globe today goes with the Boston Police Department’s denial, and the Herald sticks by its story — although it does so in an odd enough way that Adam Gaffin headlines his item “Herald admits possible goof in Dorchester story.”

Jay Fitzgerald writes on Hub Blog: “Not for a second do I believe Bill Weld knowingly approved of any wrongdoing at the now defunct Decker College.” Of course not. That’s never been Big Red’s M.O. Rather, when he’s failed, it’s been because he’s disconnected, uninterested, not paying attention to the job at hand. And that’s why Jay is correct when he adds, “I have a feeling Weld’s candidacy for governor of New York has all but ended as of today.”

In case you missed it, here is the story Jay is talking about.

Adam Gaffin of Universal Hub takes notice of a fascinating development. The Boston Herald today reports that two men have been picked up for questioning in last week’s murder of four young men in Dorchester. And Boston police spokesman Thomas Sexton used the department blog to insist that the Herald is wrong. Sexton writes:

We urge our partners in the media not to be distracted by the “sources” who could potentially jeopardize such an important investigation with grossly inaccurate information. Such reporting is hurtful and irresponsible. It is particularly unfair to victims’ loved ones who are already devastated by this tragedy.

I don’t suppose we’ll know until tomorrow whether the Herald actually blew it, or if something else is going on. What’s interesting is that the police are discovering they can use technology just as effectively as the media can to get their message out.

When President Bush said yesterday that “[l]eaders in Congress have been briefed more than a dozen times” on the NSA no-warrant spying operation, it sounded — as one Media Nation correspondent pointed out — a bit like his claims that Congress saw the same pre-war intelligence as the administration.

It turns out, though, that it’s true — sort of. How much Congress knew may determine whether Bush can extricate himself from this disaster.

Consider, for instance, this page-one piece in today’s Washington Post. Barton Gellman and Dafna Linzer report:

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA’s new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers “no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States” — and no mention of the president’s intent to bypass the Foreign Intelligence Surveillance Court.

Hmmm. That sounds like disclosure of a sort, but hardly full disclosure. But an anonymous White House source tells the Post that Graham is “misremembering the briefings.” And that contention is given some credence by House Democratic leader Nancy Pelosi, who was also briefed, and who says that she “expressed my strong concerns” about what she was hearing.

David Sanger provides more on Pelosi in today’s New York Times:

In a statement, Representative Nancy Pelosi of California, the Democratic leader, said she was advised of the president’s decision shortly after he made it and had “been provided with updates on several occasions.”

“The Bush administration considered these briefings to be notification, not a request for approval,” Ms. Pelosi said. “As is my practice whenever I am notified about such intelligence activities, I expressed my strong concerns during these briefings.”

This matters — a lot. If Bush was keeping Congress informed about NSA spying, then it will be much easier for him to make the case that he was using the powers granted to him by Congress in its almost-declaration of war following the terrorist attacks of 9/11.

That doesn’t make this any less an affront to civil liberties. And it still doesn’t explain why the White House didn’t simply take the fully legal route of having the FBI request warrants from a secret court under the terms of the Foreign Intelligence Surveillance Act. But it does make it a lot less likely that Bush will find himself in any substantial legal or constitutional trouble.

Even if the Democrats controlled one or both branches of Congress — well, what would Speaker Pelosi say?

President Bush talked about the NSA no-warrant domestic wiretaps in his radio address this morning. Here’s a chunk:

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al-Qaida and related terrorist organizations.

Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks. This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.

Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.

This is pretty scary, folks. Let’s start with his statement that his actions were “consistent with U.S. law and the Constitution.” The most generous possible interpretation of this is that it might be true — but only if you accept his argument that the almost-declaration of war approved by Congress right after 9/11 allows him to do just about anything he pleases.

Sen. Arlen Specter, chairman of the Judiciary Committee and a Republican, has already called Bush’s NSA actions “inappropriate.” Democratic Sen. Dianne Feinstein, normally no friend of civil liberties and not especially partisan, said the obvious in pointing out that Bush may have broken the law.

Thus the president has taken the position that for the New York Times to have revealed the existence of a possibly illegal spying operation run out of the White House was in and of itself illegal.

We are on new territory today.

Paul Fahri of the Washington Post today sheds a bit of light on the New York Times’ decision to wait a year before publishing yesterday’s blockbuster article that the Bush administration has been using the National Security Agency (“No Such Agency”) to conduct no-warrant wiretapping inside the United States.

Fahri notes that Times executive editor Bill Keller, in a statement, made no reference to the fact that the information will be included in a forthcoming book by James Risen, the lead reporter on yesterday’s story. Drudge was much taken with this, suggesting that the Times was helping to promote Risen’s book, “State of War,” at the expense of national security.

It’s hard to take Drudge seriously. At the same time, I’m sure that Keller didn’t want to be scooped by his own reporter’s book. So it’s not inconceivable that the book had something to do with Keller’s decision to break his paper’s year-long silence.

Here is a key passage in Fahri’s Post article:

The decision to withhold the article caused some friction within the Times’ Washington bureau, according to people close to the paper. Some reporters and editors in New York and in the bureau, including Risen and co-writer Eric Lichtblau, had pushed for earlier publication, according to these people. One described the story’s path to publication as difficult, with much discussion about whether it could have been published earlier.

In a statement yesterday, Times Executive Editor Bill Keller did not mention the book. He wrote that when the Times became aware that the NSA was conducting domestic wiretaps without warrants, “the Administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security.”

“Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions,” Keller continued. “As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.”

In the ensuing months, Keller wrote, two things changed the paper’s thinking. The paper developed a fuller picture of misgivings about the program by some in the government. And the paper satisfied itself through more reporting that it could write the story without exposing “any intelligence-gathering methods or capabilities that are not already on the public record.”

Here are some questions that Keller should answer — like today, on Byron Calame’s rarely updated blog, or tomorrow on NBC’s “Meet the Press.” To wit:

1. You’ve said that you delayed publication out of national-security considerations and to conduct more reporting. Which was more important? If you knew then what you know now, would you have gone to press a year ago?

2. One of the Times’ more shameful historical moments took place in 1961, when it held back on the details of the forthcoming Bay of Pigs invasion. (The Times actually published a lot more at the time than the myth-makers would have it, but never mind.) If the lesson of that episode was that journalists should not hop into bed with the White House, why is this different?

3. Conversely, if you really did have serious national-security concerns about publishing this story a year ago, have things really changed that much? Or were you influenced by the looming publication date of Risen’s book?

Of course, President Bush has a lot more to explain than Keller does. Bush didn’t even begin to do that in his interview with Jim Lehrer last night. Here is one question for Bush that has been bugging me since I read Risen’s story yesterday: As Risen describes it, the administration could have done all the domestic spying it wanted to if it had simply directed the FBI to obtain warrants from a secret court under the terms of the Foreign Intelligence Surveillance Act (FISA). Such warrants are rarely turned down.

Therefore, the White House’s decision to conduct such searches through the NSA rather than the FBI, without a warrant, suggests one of two possibilities: (1) the reasoning behind the spying requests was so dubious that administration officials didn’t dare approach even a normally compliant FISA judge; or (2) as Scott Shane writes in today’s Times, administration officials — and particularly Vice President Dick Cheney — are so obsessed with extending the power of the presidency that they’d rather stretch the law to (or past) the breaking point than follow the rules.

Another fiasco. And judging from the initial reaction, this one isn’t going to get swallowed up in the media miasma.