Media Nation

If the Bush administration won’t even embrace the legal defense offered by its most ardent supporters, then you can be reasonably sure those supporters are wrong.

An example: On Wednesday, the Weekly Standard published a commentary by Edward Morrissey, of the conservative blog Captain’s Quarters, arguing that the no-warrant wiretaps by the National Security Agency are fully legal under the Foreign Intelligence Surveillance Act (FISA). Morrissey quotes extensively from FISA in an attempt to make the case that “FISA authorizes warrantless surveillance in its opening chapter.” Much of this has to do with the question of whether or not the wiretaps were used to spy on “U.S. persons” as defined under the law. Morrissey argues that they were not. He also writes:

Moreover, the NSA’s efforts did not take place in darkness. The FISA court did get informed of the issue, and the leaders of the oversight committees in both houses of Congress from both parties took part in the decision. It does not appear that the Bush administration sought to hide this from the other two branches of government, but sought to include them in the oversight of the new process as much as possible within the secrecy needed to conduct the program during wartime.

If one reads further into the Times‘s long and detailed article, the Bush administration received precedential decisions from courts that acknowledged the executive authority to wage war included a broader authority to set the parameters of espionage in order to guarantee security. Clearly, the administration has sought to comply with the letter of the law while getting the best possible information as quickly as it could to prevent another devastating terrorist attack.

This all sounds fairly reasonable — until you realize that the Bush administration itself isn’t buying it. Barton Gellman reports in today’s Washington Post that the White House is continuing to advance the argument that the no-warrant searches were authorized by Congress’ near-declaration of war, passed in the aftermath of the 9/11 attacks. Gellman adds that the latest iteration of this justification — in the form of a letter to Congress written by Assistant Attorney General William Moschella — acknowledges that President Bush’s October 2001 wiretapping order did not comply with the “procedures” of FISA, a law passed in 1978.

Sorry, Captain Morrissey, but it looks like you don’t know what you’re talking about. Moschella’s argument is that the White House is violating FISA, but that it’s all right because FISA was overridden by the war resolution. That is pretty much the opposite of what Morrissey wants us to believe.

As for the administration’s attempts to hang its legal hat on the war-resolution coat rack, former Senate Democratic leader Tom Daschle has an op-ed piece in today’s Post revealing that, at the time, the Bush administration actually did seek broad authority that would probably have legalized warrantless wiretaps — and that it was shot down. Daschle writes:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

It’s becoming almost impossible to reach any conclusion other than this: Bush didn’t get what he wanted, so he broke the law.

Aye, aye, Captain?

The Boston Globe’s op-ed page today runs a piece by Karim Sadjadpour and Ray Takeyh that argues, among other things, that the vicious anti-Semitism of Iranian President Mahmoud Ahmadinejad is an anomaly. They write:

Iran’s belligerent foreign policy toward Israel is among the more puzzling issues in international relations. At a time when most Arab governments, including the elected Palestinian leadership, have come to accept Israel’s existence as an unalterable fact, non-Arab Iran continues to call for eradication of the Jewish state. Over the course of the last several weeks President Mahmoud Ahmadinejad of Iran attacked Israel as a “tumor” that should be “wiped off the map of the world” and asserted that the holocaust was a “myth.”

So I guess Israel no longer has to worry about Arab countries — just non-Arab Iran. That’s a relief. But wait. Elsewhere today, the Globe publishes an Associated Press article that begins thusly:

CAIRO — The leader of Egypt’s main Islamic opposition group said yesterday the Holocaust was a “myth,” and he slammed Western governments for criticizing disclaimers of the Jewish genocide.

The comments by Muslim Brotherhood chief Mohammed Mahdi Akef — made on the heels of his group’s strong showing in Egyptian parliamentary elections — echoed remarks made recently by Iran’s hard-line president, Mahmoud Ahmadinejad, which sparked international outrage.

“Western democracies have slammed all those who don’t see eye to eye with the Zionists regarding the myth of the Holocaust,” Akef wrote in a weekly article meant as a directive to the group’s followers on its official website.

Isn’t Egypt, you know, Arab? Isn’t the Muslim Brotherhood the single biggest threat to the Mubarak regime? Isn’t Osama bin Laden’s number-two, Ayman al-Zawahiri, connected with the Muslim Brotherhood? (The answer to that would be yes.)

So much for Holocaust-denial having fallen out of fashion in the Arab world.

Mark Jurkowitz covered a news conference called earlier today by Howard Cooper, the lawyer for Superior Court Judge Ernest Murphy. Among other things, Cooper called the Boston Herald’s decision to release letters that Murphy sent to Herald publisher Pat Purcell “a publicity stunt in an apparent attempt to continue the paper’s campaign of libel against Judge Murphy.” Think about that.

Ted Kennedy — or, to be more accurate, Ted Kennedy’s office — has an op-ed piece in the Globe today about the Bush administration’s war on civil liberties. It includes this:

Just this past week there were public reports that a college student in Massachusetts had two government agents show up at his house because he had gone to the library and asked for the official Chinese version of Mao Tse-tung’s Communist Manifesto. Following his professor’s instructions to use original source material, this young man discovered that he, too, was on the government’s watch list.

Think of the chilling effect on free speech and academic freedom when a government agent shows up at your home — after you request a book from the library.

Leaving aside my apparent misapprehension that “The Communist Manifesto” was written by Karl Marx and Friedrich Engels (or maybe I’m right), there is a slight problem: the story about the college student appears to be an urban legend. Gary McGath has details here, noting that a variant of the story recently popped up in California. (Via Universal Hub.)

Alex Jones’ expertise is in media ethics, not judicial conduct. Still, since I know Jones to be both thoughtful and cautious, I was struck by the vehemence of his reaction to the letters that Superior Court Judge Ernest Murphy sent to Boston Herald publisher Pat Purcell last February and March. Jones, director of the Joan Shorenstein Center on the Press, Politics and Public Policy, at Harvard’s Kennedy School, tells the Herald’s Greg Gatlin:

I think an apology is pretty meaningless. The fact that he did it, whether he did it on his stationery or on plain white paper, seems secondary to the fact that he did it at all.

I think there is every reason to believe that Judge Murphy is a man of uncommon bad judgment as demonstrated by the fact that he wrote these letters….

It seems so blatantly inappropriate that I would be surprised if there is not some action from the judiciary. This is a man who embodies the law. It’s incredible that this would happen without any repercussions.

Uncommon bad judgment. Blatantly inappropriate. Interesting — that’s essentially what the Herald reported about Murphy’s bail and sentencing practices in the winter of 2002. That put the Herald on the losing end of a $2.1 million libel judgment earlier this year. Yet now Murphy, through his own words, is lending credence to the notion that the Herald’s reporting — flawed and sensationalistic though it was — also happened to be substantially true. And under the law, not even a private citizen — never mind a public official such as Murphy — is supposed prevail in a libel case unless he can show he was harmed by reporting that was clearly false.

Murphy tried to place a letter in today’s Boston Globe apologizing for using his official court stationery to write handwritten letters to Purcell aimed at settling the libel case. The Globe wouldn’t bite — editorial-page editor Renée Loth tells Gatlin that she wouldn’t publish an “I hereby apologize kind of thing.” But the Globe did cover it as a news story.

There’s no longer any doubt as to whether the letters are authentic, is there? Still, I find it frustrating that no one has yet figured out why Murphy wanted Purcell to fork over $3.26 million when a reported estimate at the time of the verdict was that the judgment would cost the Herald about $2.7 million, interest included.

Elsewhere in the Herald, legal reporter Maggie Mulvihill quotes retired judge Robert Barton as saying that Murphy will likely be punished for violating the judicial code of ethics. And columnist Margery Eagan, at one point a defendant in Murphy’s libel suit, indulges (sub. req.) in some well-earned schadenfreude, beginning today with this:

Clearly, Judge Ernest Murphy has a message for Boston Herald owner Pat Purcell:

“Get over it.”

There is a school of thought that Murphy won his libel suit fair and square, and that his letters to Purcell were nothing but a typical attempt by two parties in a legal dispute to work out their differences and end their court battle. Certainly Murphy’s lawyer, Howard Cooper, is promoting that notion. And I don’t want to dismiss it out of hand. Cases such as this can get pretty ugly, and I understand that Murphy shouldn’t necessarily be judged, so to speak, by what he wrote as part of a settlement process. Purcell couldn’t have been all that offended, or he wouldn’t have waited until now to release the letters.

But the bullying tone Murphy adopted, the sneering superiority, go a long way toward puncturing his image as someone who was grievously wronged by the media. Indeed, he comes off as someone more than capable of fighting back. As a judge — a public servant — he abused the First Amendment by suing the Herald rather than taking on the newspaper in public, as he easily could have done.

As for his letters to Purcell, an old sports analogy seems to hold here: When they say it’s not about the money, it’s about the money.

The Boston Herald reports that Judge Ernest Murphy has sent a letter to the Boston Globe apologizing for using court stationery in his handwritten missives to Herald publisher Pat Purcell. Murphy reportedly says in the letter that he didn’t realize it was illegal to use his official letterhead for personal business. (Via Romenesko.)

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.