After the Tall Timber (71 page)

The New Republic
July 30, 2001

ADDENDUM

Two months after this piece was published, there was the disaster of 9/11 and, in its aftermath, the passage of legislation which does not so much grant the Court even greater powers as fuse the powers of the three branches into a single power, the prosecutorial—of which Justice Scalia, quoting Justice Robert Jackson, once so eloquently warned. The Solicitor General of the United States, as it happens, is now Theodore Olson, the Olson of
Morrison v. Olson
, the case in which Scalia alone was right, in warning of the threat the establishment of the office of special prosecutor posed to the entire constitutional system. “The Court essentially says ‘trust us,’ ” he wrote. “I think the Constitution gives  . . . the people more protection than that.” Much of what government has said, since the events of 9/11, has been a variant of “trust us.”

The doctrine of preemption, in international affairs, amounts to a variant of injunction in drastic military form. The questions—whether the preempting nation will otherwise suffer irreparable injury; whether that injury outweighs whatever damage preemption itself might cause; and whether the preemption will not be adverse to the public interest—are much the same. There has, of course, been nothing inherently violent in the ancient equitable remedy of injunction. And a real injunction can issue only from a court, or other neutral tribunal. (In at least two cases now before the Supreme Court, the administration actually argues that the president, the military, even Intelligence “Interrogators” are, under recent law, just such “neutral” tribunals, which can be trusted like any other court; the cases reached the Court at about the same time photographs of the work of Interrogators came out of Abu Ghraib.)

In his dissent in
Morrison
, in 1988, Justice Scalia wrote, with some bitterness, of “the wisdom of our former constitutional system.” In
Bush v. Gore
, decided four years ago, the balance of powers which sustains that system was radically undermined. Now, under vastly more critical circumstances, there is another national election. Whatever the outcome, and whether or not any court will intervene, the fusion of all powers in a single prosecutorial power, of unprecedented scope and almost limitless discretion, is sure to test the Court again. Whether we are already speaking of our “former constitutional system” will depend in great part on what that Court decides.

2004

“THERE’S no complacency here. Never has been. Never will be.” (Arthur Sulzberger, Jr., publisher of
The New York Times
, July 14, 2003.) This is, in its way, a classic utterance. For one thing it begins with a perfect example of the self-refuting sentence. In its underlying idiocy and limitless self-regard it also manages to embody, and project through time, a virtual definition of the word “complacency.” Sulzberger had assembled the
Times
staff to announce the appointment of a new executive editor, Bill Keller, a popular choice. The staff, however, was preoccupied with something else. Howell Raines, Keller’s predecessor, had appeared on
The Charlie Rose Show
a few nights before, and expressed several views critical of the paper. He had described the
Times
as “an irreplaceable national institution.” He had even said (somewhat more debatably) that “the great advantage” the
Times
has “over any other news organization in the world” is “brain power.” Raines had claimed, however, that the
Times
had become a “culture of lethargy and complacency.”

Well. It is hard to know what members of the
Times
staff can have expected from a former boss whom they had savagely attacked in every conceivable forum—from a “town meeting” in which he had to listen to insults both personal and professional and even to abase himself with the sort of confession reminiscent of a Maoist party cell (with the added ignominy of having a toy moose placed in his lap) through a campaign of venomous emails, posted all over the Internet. Maureen Dowd was partly right in comparing this spectacle to
Lord of the Flies
—with this difference: the
Times
, in recent years, has lost any awareness of the relation between the one and the many, of the real moral questions raised by piling on and ganging up. The behavior of those assembled was characteristic in some ways of an institution whose chief principle of action has become increasingly this: it will not permit itself to be criticized, contradicted or even questioned, in public. The
Lord of the Flies
aspect, the fact that the critic in this case was a former boss, whom it had very recently humiliated and deposed, was incidental. As the
Times
’s powers have grown (through the attrition of other newspapers), its sense of the vulnerability of the individual in the face of those institutional powers has vanished. In fact, it feels victimized.

At the same time, its one inviolable belief has become simply this, not a politics, right or left, but an ideology: the
Times
, as an institution, believes what has been published in its pages. To defend this belief it will go very far. The search, the grail, the motivating principle for individual reporters has become, not the uninflected reporting of news, but something by now almost entirely unrelated: the winning of a Pulitzer Prize. In the interim, some other prize will do. But once won, the Pulitzer turns into both a shield and a weapon—a shield in defense of otherwise indefensible pieces by Pulitzer Prize winning reporters, a weapon in the struggle for advancement within the hierarchy of the
Times
. The paper still has some very fine editors and reporters, with highly honorable concerns. But a five-year moratorium on the awarding of Pulitzer Prizes to journalists at powerful publications might be the greatest service to journalism the Pulitzer Committee could now perform.

In any event, Howell Raines had said on
The Charlie Rose Show
that the
Times
was complacent. Sulzberger’s words were intended—and perhaps somewhere perceived—as a rebuttal to this remark. In recent years, executive editors of the
Times
have tended to find the paper much improved during their tenure. At a retreat in Tarrytown, New York, in September 2000, Joseph Lelyveld had expressed to eighty newsroom editors, and a few colleagues from other publications, his belief that the
Times
had become “the best
New York Times
ever—the best written, most consistent, and ambitious newspaper
Times
readers have ever had.” In July, in the course of the infamous
Charlie Rose Show
, Howell Raines said, “The newspapers that we have produced over the past twenty months are the best in the history of the
Times
.”

Whether or not these were expressions of complacency, they would have been unthinkable for the predecessors of these men—for the executive editors, Turner Catledge, say, or A.M. Rosenthal, who said he only wanted to be remembered as the editor who “kept the paper straight.” Rosenthal did keep the paper straight, in a time that now seems unimaginably remote—with a first-rate staff and the discreet support of the
Times
’s publisher in those years, Sulzberger’s father. In any event, the current Sulzberger’s words on the subject of complacency, or non-complacency, marked the culmination of what has become the saga of
The New York Times
and Jayson Blair.

The saga began on April 26, 2003, when the
Times
published a piece which a 27-year-old staff reporter, Jayson Blair, had essentially cribbed from an article published eight days earlier in the
San Antonio Express-News
. The original article had been written by Macarena Hernandez, a former intern (and colleague of Blair’s) at the
Times
; it consisted mainly of an interview with Juanita Anguiano, the single mother of an only son, Specialist Edward J. Anguiano, of Los Fresnos, Texas, the last American soldier still missing at that time in Iraq. Normally, as Jayson Blair had every reason to know, calling attention to errors in the
Times
, provided that they are absolutely trivial (misspellings of first or last names, mistaken middle initials, misidentifications of who is standing on the left and who on the right in photographs), may result in a Correction. Calling attention to major or substantial errors will have no result at all. The
Times
, committed to an image of infallibility on every important factual matter, will neither acknowledge them nor respond in any way.

In this instance, however, Robert Rivard, the editor of the San Antonio paper, had an exchange of emails with the editors of the
Times
—who said they would “look into the matter.” Rivard asked them to “acknowledge publicly” that the
Times
had wrongfully appropriated Ms. Hernandez’s work. Perhaps aware of how such an allegation would normally be treated, Mr. Rivard took the trouble of sending copies of his email to others. So the saga began
publicly
on April 30, 2003—when both the Associated Press and Howard Kurtz of the
Washington Post
ran the story. Had the
Times
not been “caught,” in this public way by rival publications, the paper would surely have done nothing and acknowledged nothing. In fact, it
did
nothing, until after the AP and
Washington Post
stories appeared. The next day, May 1, 2003, Jayson Blair resigned. On May 2, the
Times
reported his resignation, and added an Editors’ Note to the effect that the paper had begun “an internal review” of the piece in question, that it regretted the “breach of journalistic standards,” and that it planned an “apology” to the “family” that was the subject of the piece.

The apology, if any, seemed misdirected. If it was owed to anyone, one would have thought, it was to Ms. Hernandez, whose piece had been cribbed. The Anguiano family had been in no way harmed by Jayson Blair’s piece; they were not even aware that it existed. On April 28, 2003, two days after the
Times
’s publication of the piece, the Department of Defense announced that Sgt. Anguiano was dead. On April 30 and May 1, however, the
Times
apparently found it necessary to phone his mother, to confirm in time for its report of May 2, that she “did not recall Mr. Blair’s having visited her home in Los Fresnos, Texas.” (“No, no, no, he didn’t come,” she said, according to the
Times
.) Everyone makes mistakes. Perhaps the reporter had called without reading the casualty lists released each day by the DOD. The
Times
account seemed an act of journalism run more seriously amok than anything contemplated by Jayson Blair. In any event, with the
Times
report, on May 2, 2003, of Mr. Blair’s resignation, and the reason for it, the matter should have rested. A minor reporter had made a mistake, and a miscalculation. Other reporters, more famous and highly regarded than Blair, had made mistakes with more serious consequences, not just for individuals but in matters of national importance. With one exception, the
Times
had paid no attention to the problems raised by any of them. (The exception was its coverage, in 1999 and 2000, of Wen Ho Lee.) The
Times
should simply have dropped, for its insignificance, the matter of Jayson Blair.

But no. On Sunday, May 11, with four pieces, beginning on Page One, and totaling approximately 15,000 words, the
Times
let loose. The first piece (7,165 words) was a narrative, which cast Jayson Blair as a sometimes charming, basically calculating villain, whose intent was not (as any reader of ordinary intelligence might have thought) to publish a lot of pieces and get ahead, but to deceive and victimize his too credulous, forgiving—and even understaffed—employer. The narrative, by five reporters (one a fine lawyer, Adam Liptak) and two research assistants, relied on “more than 150 interviews,” as well as expense accounts and phone records, to conclude that Jayson Blair, in 600 pieces written over a period of four years, had “flouted long-followed rules” at the
Times
in “a pathological pattern of misrepresentation, fabricating and deceiving.” By turns accusatory, sanctimonious, sympathetic, self-exonerating (“the deceit of one
Times
reporter does not impugn the work of 375 others”), the article quoted outsiders, deans of journalism schools for example, to support the
Times
’s view of Blair’s career, its importance and his motives.

“There has never been
a systematic effort to lie and cheat
 . . . comparable” to Blair’s, said one. “It is difficult to catch someone who is
deliberately trying to deceive you
,” said another. Lying. Riddled with lies. Journalistic fraud. Systematic fraud. A cause of “pain” and “hurt.” This last was mystifying. Not one of Blair’s pieces, mostly soft, human-interest news of the sort which the
Times
has increasingly favored, seemed harmful either in intent or in effect—at least for their subjects. On the contrary. One couple whom Blair had interviewed by phone, the parents of a Marine scout then stationed in Iraq, were so “delighted” with his piece that they wrote a letter, which the
Times
published. Another, a wounded soldier whom Blair also interviewed by phone, was so taken with a sentence Blair ascribed to him that he apparently could not quite bring himself to relinquish it: “he could not be sure,” he told the
Times
, “whether he had uttered” the sentence—which the
Times
had, in fact, chosen, on April 19, 2003, as its “Quotation of the Day.” The story, like many of Blair’s stories—like many stories of far greater importance published routinely by the
Times
, among other newspapers—was largely false.

Stories published under deadline pressures, in an effort to cover the world on a daily basis, are bound to contain quantities of misinformation. The difficulty is to sustain, within the news itself, a continuous process of correction. (This is why the
Times
Corrections column, with its restriction to silly and often repetitive minutiae, creates a disingenuous impression of care for accuracy while it undercuts the fundamental integrity of the paper. A newspaper that insists on infallibility in large matters, while pointing out, as the
Times
does in correcting Jayson Blair, “The sister of Corporal Gardner is named Cara not Kara,” is a less trustworthy source of news than a paper without a Corrections column of any sort.) But the subjects of these pieces did not care. The normal reader did not care. In fact, not even the most fanatically press-obsessed reader could much care about the endlessly detailed re-reporting of what had been from the outset trivial stories.