Tag Archives: Judy Miller

The AP Grab: NSL versus Subpoena

By:  Tuesday May 14, 2013 11:12 am

Update: In his letter responding to AP’s complaints, Deputy Attorney General James Cole says these were subpoenas. Cole tries to argue the scope of the subpoena was fair. But what he doesn’t explain is why the government didn’t give the AP notice or an opportunity to turn over the contacts voluntarily.

I want to return to a question I introduced in my post describing DOJ’s grab of call records from 20 AP phone lines.

The assumption has been that DOJ subpoenaed these call records. While that’s probably right, I still think it’s possible DOJ got them via National Security Letter, which DOJ has permitted using to get journalist contacts in national security investigations since fall 2011. I’ll grant that AP President Gary Pruitt mentions subpoenas twice in his letter, once specifically in connection with DOJ’s grab and once more generally.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen. [my emphasis]

But the entire point of Pruitt’s letter is to call attention to the way in which DOJ did not honor the spirit of its media guidelines, which are tied to subpoenas, not NSLs. That’s what the Domestic Investigations and Operations Guide says explicitly (PDF 166) when it talks about using NSLs with journalists: when using NSLs, the rules don’t apply.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

For a variety of reasons, I think it possible the AP doesn’t actually know how DOJ got its reporters’ contact information. And thus far, the most compelling argument (one Julian Sanchez made) that DOJ used a subpoena is that they did ultimately disclose the grab to the AP; with NSLs they wouldn’t have to do that, at least certainly not in the same time frame.

But Pruitt’s emphasis is sort of why I’m interested in this question: either DOJ used a subpoena and in so doing implicitly claims several things about its investigation, or DOJ used an NSL as a way to bypass all those requirements (and use this as a public test case of broad new self-claimed authorities). Both could accomplish the same objective — getting call records with a gag order — but each would indicate something different about how they’re approaching this investigation.

Here are DOJ’s own regulations about when and how they can subpoena a journalist or his call records. Some pertinent parts are:

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

(g)(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.

(g)(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. [my emphasis]

US Attorney Ronald Machen statement about the grab largely echoes those parts of the regulations (though somehow he forgot to mention that “subpoenas should be as narrowly drawn as possible”).

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

So either DOJ used an NSL, which would give them a longer gag, fewer express limits on the scope of the request, and zero expectation of giving notice beforehand (in addition, obtaining NSLs from journalists in national security cases doesn’t appear to require Attorney General sign-off). In which case Machen is playing the same kind of word games the DIOG plays, acknowledging there are regulations the spirit of which DOJ appears to have violated.

Or Machen maintains the following about the grab:

  • DOJ has already checked the US person call records of the people known to be read into the UndieBomb plot and not found any obviously calls or emails implicating the journalists involved in the story and either hasn’t been able to access or hasn’t found any obvious clues in the potential Saudi, Yemeni, and British people read into the operation (note, some Saudis were on the record on this within days and Yemenis also appear to have leaked it).
  • Notifying the AP that DOJ was going to go get journalist contact information for two months, in an investigation that has been widely publicized for an entire year, would pose some threat to the investigation. Normally, such a claim is usually based on the premise that revealing the investigation at all would alert the targets who would otherwise not know about it, but that’s obviously not what’s going on here, because this has been one of the most public leak investigations in recent years.

Continue reading →


Cheney’s Thugs Win the Prize for Leak Hypocrisy

By:  Wednesday July 25, 2012 12:43 pm

I wasn’t much interested in Mitt Romney’s latest efforts to change the narrative from the evil things he profited off of at Bain Capital and the tax havens he stashed the money he got as a result. Not only don’t I think journalists will be all that interested in Mitt’s claim that Obama’s White House is a leaky sieve. But I’m not about to defend the Most Fucking Transparent™ White House in Fucking History against such accusations.

Until Cheney’s thugs start leading the attack.

Such as Eric Edelman, who says we need “change” because Obama’s Administration leaked details of the Osama bin Laden raid.

Eric Edelman is this guy:

Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy [Edelman] and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line

Four days after Edelman made the suggestion to leak information about Joe Wilson’s trip, Scooter Libby first revealed to Judy Miller that Valerie Plame worked at the CIA.

But Edelman is not the only one of Cheney’s thugs bewailing leakers: (h/t Laura Rozen, who follows BabyDick so I don’t have to)

Romney today at VFW on contemptible conduct of Obama White House leaking classified info for political gain. Must read. http://tinyurl.com/bw4s4lt

Now, to be fair to dear BabyDick, unlike Edelman she has not been directly implicated in her father’s deliberate exposure of a US CIA officer working to stop nuclear proliferation. Unlike Edelman, she was not protected from legal jeopardy by Scooter Libby’s lies.

But she did co-author her father’s book, which was a whitewash of his treachery (even if it did reveal that Cheney had a second interview with Pat Fitzgerald, one treated as a grand jury appearance, just around the time Fitzgerald subpoenaed Judy Miller. BabyDick Cheney is complicit in the lies the Cheney thugs have used to hide what a contemptible leak for political gain the Plame leak was.

And now she thinks she should lecture others about far less treacherous leaks?


Obama DOJ Claims Journalists Are Like Drug Users

By:  Monday May 21, 2012 11:32 am

HuffPo has a good write-up of Friday’s Fourth Circuit hearing on whether James Risen is entitled to a reporter’s privilege in the Jeff Sterling case. It describes Judge Robert Gregory challenging DOJ appellate lawyer Robert Parker’s claims that there is no privilege at all. And while Charlie Savage described the two other judges as harder to read, both stories noted Albert Diaz calling Branzburg v. Hayes–the SCOTUS precedent–”clear as mud.”

I’m particularly interested in the way Gregory pushed back against Parker. He made a distinction between the crime that reporter Paul Branzberg witnessed–the preparation and consumption of hash–for which he was called to testify to a grand jury, and what Risen allegedly witnessed.

“I don’t think there would be a balancing test because there’s no privilege in the first place,” Parker said. “The salient point is that Risen is the only eyewitness to this crime.”

Gregory told Parker that the Supreme Court’s Branzburg v. Hayes decision — which Parker cited as precedent for forcing journalists to testify when they had witnessed a crime — involved the witnessing of a different crime, “not the disclosure itself.”

Parker said what Risen did was “analogous” to a journalist receiving drugs from a confidential source, and then refusing to testify about it.

“You think so?” Gregory asked, clearly unconvinced.

“The beneficiary of the privilege is the public … the people’s right to know,” Gregory said. “We need to know what the government is doing,” he noted. “The king never wants anyone to disclose.”

The challenge is interesting as a threshold level, because the Obama Administration has built a lot of their attacks against leaks on the notion that journalists are witnesses to a crime (Patrick Fitzgerald obtained Judy Miller’s testimony on the same basis, though he did so though an application of the balancing test that Parker wants to throw out altogether).

Obama’s DOJ has gone further, though: they appear to have approved the use of National Security Letters to obtain journalists’ contacts in the most recent update of the DIOG. That would appear to allow them to learn the identity of sources journalists phone or email without any judicial review. Which in turn allows DOJ to determine a crime has been committed and based on that, eliminate journalists’ confidentiality because they were “witnesses” to what DOJ has unilaterally determined is a crime.

If Gregory rejected the government’s argument based on leaks being a different kind of crime, it would not only protect Risen’s sources for his MERLIN story, but it would mean the government would have to curtail its use of NSLs to get journalist contacts (at least in the Fourth Circuit).

But this passage is revealing for another reason. As I said above, Branzberg was subponaed because he witnessed the use of illegal drugs. But Parker, in constructing his analogy, said receiving classified information from a source is like receiving illegal drugs, not just witnessing them. Note what that misapplication of the analogy does: It is not illegal to witness the use of drugs, but it is illegal to possess illegal drugs.

In other words, though no law supports such a suggestion, DOJ is now arguing that journalists who receive classified information are themselves criminals, just like those who possess hash.

Someone’s smoking something awful at DOJ.


Judy Miller, Barabara Starr, and an Influx of Intelligence

By:  Friday April 20, 2012 8:19 am

I’m going to disappoint Jim by not dedicating a full post to Judy Miller’s graceless rant about the AP’s Pulitzer win, in which she whines that the AP hasn’t taken Ray Kelly’s insistence that his NYPD’s spying is legal seriously enough. I already had to fisk Miller’s credulous regurgitation of Ray Kelly’s defense of the NYPD here and then remind her that journalists should be in the business of sorting out false claims from true ones here. Given her past failures to write credibly on the AP’s NYPD series, I trust no one will make the mistake of doing anything but dismissing everything she has to say about the AP series.

But since I’ve already started a post about mouthpieces for those in power, maybe I should take a look at what Miller’s close kin, Barbara Starr, had to say about expanded drone strikes in Yemen.

The lead in Greg Miller’s story on this emphasized how little intelligence we would have on the expanded drone strikes.

The CIA is seeking authority to expand its covert drone campaign in Yemen by launching strikes against terrorism suspects even when it does not know the identities of those who could be killed, U.S. officials said.

Securing permission to use these “signature strikes” would allow the agency to hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives.

Compare that with the headline and lead in Barbara Starr’s version.

Intel influx leads to increased U.S. strikes in Yemen

The increased pace of counterterrorism strikes in Yemen by U.S. drones and aircraft is a result of what U.S. military and intelligence officials describe as improved intelligence about the leadership of the al Qaeda movement in that country.

Continue reading →


As Bush Did with Judy Miller, Obama Insta-Declassifies for David Ignatius

By:  Monday March 19, 2012 11:17 am

One more point about the David Ignatius wankfest today.

In his story pitching OBL as a still-ambitious terrorist rather than an out-of-touch idiot, David Ignatius claimed the documents he based his article on had already been declassified.

The scheme is described in one of the documents taken from bin Laden’s compound by U.S. forces on May 2, the night he was killed. I was given an exclusive look at some of these remarkable documents by a senior administration official. They have been declassified and will be available soon to the public in their original Arabic texts and translations. [my empahsis]

But National Security Council spokesperson Tommy Vietor says that’s not yet the case.

A White House spokesman confirmed that the documents found in the raid are in a declassification process that is “still ongoing,” and National Security Council spokesman Tommy Vietor said it “would likely be a few months before they’re fully available” to the media and public. (The CIA had no comment.) [my emphasis]

Either these documents are declassified, in which case the White House should be handing them out to anyone who asks, or they’re not yet declassified, in which case, someone should be prosecuted for handing them to Ignatius.

The most likely explanation, however, is that the Administration is playing the same game the Bush Administration played with Judy Miller, sharing still-classified documents with a reporter who will spin things in a favorable light, so as to pre-empt any response a
more open assessment of the documents will have. That the Obama Administration is doing it to support his reelection and not an illegal war doesn’t make the ploy any less cynical.


NYPD Makes Work But Not Knowledge

By:  Friday March 9, 2012 1:44 pm

When I read the Judy Miller/Richard Clarke op-ed defending Ray Kelly (this is Judy’s second go-around defending Kelly, btw), I realized something about the NYPD CIA-on-the-Hudson program. They write,

Yet NYPD efforts to engage with and selectively surveil at-risk populations are not only legal but essential. In 2002, Mr. Kelly decided that a “broad base of knowledge” about who lives in the New York area was crucial to preventing terrorism. “It was precisely our failure to understand the context in 1993″—after the first World Trade Center bombing—”that left us vulnerable in 2001,” he said. So police tried to determine “how individuals seeking to do harm might communicate or conceal themselves. Where might they go to find resources or evade the law?” Such “geographically-based knowledge” saved “precious time in stopping fast-moving plots,” he said last weekend. [my emphasis]

Ray Kelly and his defenders claim that the process of mapping out all the Muslim communities in the NYC area produces “knowledge.”

But after reading the two latest sets of documents released by the AP: mapping the Syrian and Egyptian communities, it became clear that this is less about knowledge and more about make work. The Egyptian packet, in particular, reads more like the kind of crappy composition papers you see from college freshmen learning how to write and think critically–complete with significant portions just cut and pasted from online sites (in this case, the NYC and CIA sites). How much “knowledge” did an officer gain by copying the NYPD’s own website to include this information in a report on Egyptians in the 68th precinct? (Note, the NYPD appears to have taken this tour guide information down in 2006 after this particular report was completed.)

The 68th Precinct provides police service to the Brooklyn neighborhoods of Bay Ridge, Dyker Heights and Fort Hamilton. These middle-class neighborhoods are culturally and ethnically diverse. Over recent years there has been a significant influx of people of Middle-Eastern and Asian descent into the area. One and two family homes dominate the landscape; however, there are also many four and six story apartment houses throughout the precinct. Residents and visitors enjoy the recreational amenities afforded by the area’s seven major parks, two theaters, golf course and spectacular waterfront along “The Narrows” between Brooklyn and Staten Island. Independent merchants, as well as some chain stores, provide for ample retail shopping and other services along Third, Fifth, Eleventh and Thirteenth Avenues as well Fort Hamilton Parkway and 86th Street. Over one hundred restaurants, bars and nightclubs provide for a vibrant nightlife. Fort Hamilton is the only active duty military installation in New York City.

Does repeating the NYPD’s own assessment that The Narrows is a spectacular waterfront really help find terrorists?

Then there’s the sheer repetition of it, which becomes apparent if you compare the Moroccan mapping report to the Egyptian and Syrian one. Between them the reports many of the same sites, including at least the following.

  • Nassem meat market
  • Egyptian coffee shop
  • Eastern Nights Cafe
  • Bay Ridge International Cafe
  • Egyptian Cafe
  • Ramalla Coffee Shop
  • Tutankhamun

Of what value is it for the NYPD has paid officers to go twice in the same year to the same businesses to do these completely new profiles?

Egyptian Cafe, Moroccan Version, undated (other reports in same packet dated December 19, 2006 and April 13, 2007)

Continue reading →


Judy Miller Discovers the Word “Claim”

By:  Thursday January 19, 2012 9:26 am

Judy Miller, first amendment martyr, has finally found an assertion that she distrusts enough to diminish by using the word “claim:”

NYPD’s critics have complained about potential invasions of privacy and disruptions of New Yorkers’ civil liberties. During the Occupy Wall Street protests, several reporters and citizens claimed to have been abused and arrested without justifiable cause. [my emphasis]

Now, to her credit, she also modified Ray Kelly’s assertion that those who have Occupied Wall Street are anarchists.

He defended the NYPD’s dismantlement of the Occupy Wall Street encampment at Zuccotti Park last fall and its handling of the protests that threatened to block vehicular and foot traffic on city streets. Handling such demonstrations, said Kelly, was “a contact sport.” “Sometimes we overreact,” he conceded. “We make mistakes.” But by and large, he concluded, the department had done a “good job” of enabling social protest while also protecting the city against violent disruptions caused by a minority of what he called “anarchists.” [my emphasis]

Not to get all Truth Vigilante on an esteemed journalist like Judy Miller, but these are both testable assertions. There are videos clearly showing journalists being pushed around and arrested even though they were properly credentialed. And any discussion of the treatment of journalists at Occupy Wall Street must go further, to talk about how journalists were managed to ensure they couldn’t cover certain things, and how more generally the NYPD refused to credential journalists so they could cover it. And while you’re at it, it might be nice to mention that regular people also were abused and arrested without justifiable cause, not just journalists.

But then you might also have to go further when challenging Kelly’s claims than simply scare-quoting them. In fact, in most cases, violent disruptions were caused by the NYPD, not protestors.

Though, I guess if Ray Kelly wants to call his force a bunch of anarchists, he would know.


Ten Years Ago, Anthrax Attacks–and Judy Miller–Had Huge Effect on Passage of Patriot Act

By:  Wednesday October 26, 2011 10:46 am

Ten years ago today, George W. Bush signed the Patriot Act into law. (US National Archives photo)

Ten years ago today, George W. Bush signed the Patriot Act into law in what many consider to be the single biggest blow to civil liberties our country has seen.  I will leave it to others to detail the damage done to our rights, but a quick list of that damage can be seen here on the History Commons website.  Instead, what I want to focus on is the prominent role played by the anthrax attacks in the passage of the Patriot Act.

Although most would say that the Patriot Act was a direct result of the 9/11 attacks, timeline analysis shows that key events in the anthrax attacks took place during the critical days leading up to passage of the act.  The timeline I have assembled here draws on data in timelines prepared by Marcy Wheeler, History Commons (anthrax), History Commons (Patriot Act) and Ed Lake, along with my own contributions.

September 4, 2001 Exactly one week before the 9/11 attacks, Judy Miller disclosed Project Bacus, in which the Defense Threat Reduction Agency demonstrated that they could construct a functional small bioweapons facility at the Dugway Proving Grounds in Utah for under $1 million.  The facility is capable of both growing and weaponizing biowarfare agents.

September 18, 2001 Letters containing anthrax mailed to the New York Post and Tom Brokaw were postmarked one week after the 9/11 attacks.  It is presumed that the letter that lead to the death of Robert Stevens of American Media in Boca Raton, Florida was also mailed around this time but the letter itself was never recovered.

September 30, 2001 Robert Stevens begins to feel ill. Continue reading →


At About the Time He Subpoenaed Judy Miller, Patrick Fitzgerald Interviewed Cheney a SECOND Time

By:  Tuesday October 4, 2011 11:49 am

When I recover a bit more from having finished Dick Cheney’s infernal tome, I will have more to say about it.

But I wanted to point to this piece of news in it that no one has yet noted:

I participated in two lengthy sessions with the special counsel. The first was in my West Wing office in May 2004. The second was in Jackson Hole Wyoming, in August 2004. The second session was conducted under oath so that my testimony could be submitted to the grand jury.(408)

That is, Patrick Fitzgerald interviewed Cheney not just the one time we knew about–on May 8, 2004. But he also interviewed Cheney sometime during August 2004 (at least according to Cheney), apparently in anticipation of submitting that testimony to the grand jury.

The timing of this is pretty telling.

On August 12, 2004, Fitzgerald subpoenaed Judy Miller to testify. And on August 27, 2004, he wrote an affidavit justifying his subpoena, focusing closely on Scooter Libby’s claims that he had been ordered by Dick Cheney to leak material to Miller. And we know from Cheney’s first interview that he hung Libby out to dry, denying any knowledge of such things.

The Vice President does not recall any member of his staff, including Scooter Libby, meeting with New York Times reporter Judith Miller during the week of 7/7/03, just after publication of Joe Wilson’s editorial in the New York Times.

[snip]

The Vice President advised that no one ever told him of a desire to share key judgments of the NIE with a news reporter prior to the NIEs declassification on 7/18/03.

[snip]

The Vice President cannot specifically recall having a conversation with Scooter Libby during which Libby advised the Vice President that he wanted to share with the key judgments of the NIE with Judith Miller. Although if it did occur, he would have advised Libby only to use something if it was declassified. He believed Libby would have told him about any attempts to put something out to the media prior to its declassification and the Vice President cannot recall such a discussion.

When asked if he ever had a conversation with Scooter Libby wherein Libby informed the Vice President that certain material within the NIE needed to be declassified before it could be shared externally, Vice President Cheney advised he does not recall.

To a large degree, Cheney’s first answers–assuming they remained substantively the same in the second interview–necessitated Judy Miller’s testimony, since Libby had clear notes about being ordered to leak material to Miller that had been effectively hidden by his lies about Russert. Libby’s notes made it appear like he might have leaked Plame’s identity to Miller (which turned out to be the case). And Cheney’s refusal to claim he had authorized that leak put Libby at real risk of an IIPA indictment.

This interview raises a few more questions. First, in his first interview, Cheney did not release the journalists he had spoken with from their pledge of confidentiality. Bob Novak testified on September 14, 2004; though Fitzgerald’s affidavit makes it clear much of that discussion was about his conversation with Richard Armitage, Novak spoke with someone at OVP on July 7, 2003, so it has always been possible he was hiding a Cheney conversation.

In addition, Judy Miller explained away the “Aspens connected at the roots” comment by relating a chance encounter with Libby in Jackson Hole in August 2003 (not 2004). Though when I asked her if she had seen Cheney on that same trip, she did not answer. Is it possible the reference to Jackson Hole was a coded reference to Cheney?

Finally–and critically importantly–when CREW FOIAed this interview, they asked for “all transcripts, reports, notes and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame Wilson.” In other words, this second interview would have been squarely within the terms of their request. This interview should have been released under their FOIA, but was not.

This previously unreported Cheney interview would appear to go right to the heart of why Patrick Fitzgerald subpoenaed Judy Miller to find out whether Scooter Libby leaked Valerie Plame’s identity to her. And for some reason, it appears the Bush and Obama DOJ didn’t want us to read it.


WSJ: Don’t Be Mean to Us Like Fitz Was to Judy

By:  Sunday July 17, 2011 9:59 pm

Most sane people are outraged by the WSJ’s hacktalicious editorial calling for calm on the hack scandal.

As well they should: the editorial discredits WSJ as a paper.

But I was particularly interested in this bit.

In braying for politicians to take down Mr. Murdoch and News Corp., our media colleagues might also stop to ask about possible precedents. The political mob has been quick to call for a criminal probe into whether News Corp. executives violated the U.S. Foreign Corrupt Practices Act with payments to British security or government officials in return for information used in news stories. Attorney General Eric Holder quickly obliged last week, without so much as a fare-thee-well to the First Amendment.

The foreign-bribery law has historically been enforced against companies attempting to obtain or retain government business. But U.S. officials have been attempting to extend their enforcement to include any payments that have nothing to do with foreign government procurement. This includes a case against a company that paid Haitian customs officials to let its goods pass through its notoriously inefficient docks, and the drug company Schering-Plough for contributions to a charitable foundation in Poland.

Applying this standard to British tabloids could turn payments made as part of traditional news-gathering into criminal acts. The Wall Street Journal doesn’t pay sources for information, but the practice is common elsewhere in the press, including in the U.S.

The last time the liberal press demanded a media prosecutor, it was to probe the late conservative columnist Robert Novak in pursuit of White House aide Scooter Libby. But the effort soon engulfed a reporter for the New York Times, which had led the posse to hang Novak and his sources. Do our media brethren really want to invite Congress and prosecutors to regulate how journalists gather the news?

This is structured as an appeal to other media outlets, warning them that if they pile on, it might well hurt them too (this structure continues to the rest of the editorial).

This argument ends with the Scooter Libby argument–the claim that the NYT, because it purportedly “led the posse to hang [Bob] Novak and his sources” (including, among others, Dick Cheney and Scooter Libby), ended up getting embroiled in the Libby case (in spite of the fact that NYT discredited itself by protecting Libby for a year after they had published his name as Judy’s source).

Fair enough. The NYT–and especially Judy Miller–was exposed to be as hackish as Novak was (and, as another outlet who published bogus leaks in the Joe Wilson pushback, the WSJ) when its laundering of government leaks was made clear.

So the WSJ is rightly reminding other media outlets that they are as hackish as it is. Perhaps they have specific incidents of hackishness in mind?  Maybe the rest of the press should worry that a focus on how corrupt our press has gotten will reflect badly on them too. It appears, for example, that the WaPo is worried about just such a thing.

Then, oddly (working backwards from the Judy Miller issue), the WSJ warns that if other media outlets pile on, it’ll criminalize payments made in the course of news-gathering–with a claim that such a horror would only matter for British tabloids. Only, that’s not exactly true, is it? And that’s before you consider the number of “consultants” TV stations pay for their “expertise.”

Then, in the first part of this passage, the WSJ rails against what is probably one of its biggest worries–it’ll be held liable in the US for the fairly well-established bribery it engaged in in the UK (even assuming no such bribery were discovered here in the US). It suggests that a poor helpless media company would never bribe a government for something real–like a contract. Putting aside the appearance that Murdoch’s minions bribed the cops.

Except at the heart of this scandal is Murdoch’s attempt to get full control of BSkyB. Not to mention Murdoch’s fairly well-established pattern of trading political support for Tony Blair, Hillary Clinton, and David Cameron in exchange for political favors.

This is bribery every bit as much as Halliburton’s bribery to get Nigerian contracts was bribery. A satellite concession is every bit as tangible a goal as is a contract. But it attempts to couch decades of Murdoch’s ruthless business practices in First Amendment hand-wringing. It suggests that whatever meager journalism Murdoch’s minions do, it should excuse his illegal business practices.

This WSJ editorial is a damning exhibit in outright hackery.

But I suspect its audience–other hackish media outlets–finds it a persuasive read.

Update: With this editorial in mind, I wanted to point to a few paragraphs of Alan Rusbridger’s description of how the Guardian broke this story. A key part of it, he describes, was in partnering with the NYT to break the omertà among British papers.

Big story? Not at all. Not a single paper other than The Guardian noted [a $1 million settlement against News of the World for bullying] in their news pages the next day. There seemed to be some omertà principle at work that meant that not a single other national newspaper thought this could possibly be worth an inch of newsprint.

Life was getting a bit lonely at The Guardian. Nick Davies had been alerted that Brooks had told colleagues that the story was going to end with “Alan Rusbridger on his knees, begging for mercy.” “They would have destroyed us,” Davies said on a Guardian podcast last week. “If they could have done, they would have shut down The Guardian.”

If the majority of Fleet Street was going to turn a blind eye, I thought I’d better try elsewhere to stop the story from dying on its feet, except in the incremental stories that Nick was still remorselessly producing for our own pages. I called Bill Keller at The New York Times. Within a few days, three Times reporters were sitting in a rather charmless Guardian meeting room as Davies did his best to coach them in the basics of the story that had taken him years to tease out of numerous reporters, lawyers, and police officers.

The Times reporters took their time—months of exceptional and painstaking work that established the truth of everything Nick had written—and broke new territory of their own. They coaxed one or two sources to go on the record. The story led to another halfhearted police inquiry that went nowhere. But the fact and solidity of the Times investigation gave courage to others. Broadcasters began dipping their toes in the story. One of the two victims began lawsuits. Vanity Fair weighed in. The Financial Times and The Independent chipped away in the background. A wider group of people began to believe that maybe, just maybe, there was something in this after all. [my emphasis]

News Corp would have destroyed the Guardian, Rusbridger and Nick Davies say, if they had had the dirt to do so. Such threats are presumably how News Corp enforced the omertà on the story.

Now look at the editorial. It appears, first of all, to be an appeal to precedent–a similar kind of appeal often made when pointing out that an espionage prosecution of Julian Assange will criminalize newsgathering.

It argues that a prosecution of News Corp under the FCPA would be a bad precedent, equating contracts with–well, I”m not sure what News Corp is admitting to here, as its media interests do amount to a contract. It then suggests–the logic is faulty–that such a prosecution would also criminalize the news gathering of those who pay for stories. This seems to be an implicit threat directed at those who do pay for stories (note that this editorial doesn’t say News Corp, including Fox TV, doesn’t pay for stories, just WSJ), perhaps an attempt to silence TV news.

But then, after having already impugned newspapers that, like the Guardian and NYT, gave “their moral imprimatur” to WikiLeaks, the editorial levels a threat clearly directed at the NYT, noting how the the newspaper’s purported efforts to go after Novak’s sources ended up backfiring on the NYT.

Not long after Rusbridger described the omertà that helped News Corp forestall consequences in the UK, Murdoch’s mouthpiece here in the US issued a veiled threat against the NYT.

I’m betting that Murdoch thinks the NYT will be easier to destroy than the Guardian.