In 'Bush's Law,' Secret Surveillance Efforts Revealed

DATE April 2, 2008 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Author and reporter Eric Lichtblau discusses new book
"Bush's Law: The Remaking of American Justice"
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Several of the Bush administration's secret surveillance programs that spied
on Americans and were developed as part of the war on terrorism were exposed
by my guest, Eric Lichtblau. He covers the Justice Department for The New
York Times. Lichtblau and his fellow Times reporter James Risen broke the
story of the warrantless wiretap program run by the National Security Agency,
and a parallel story about tapping information in a global banking system
known as SWIFT. The Bush administration tried to prevent the Times from
running the warrantless wiretap story. President Bush called the publication
of the SWIFT program disgraceful. Lichtblau's Justice Department press pass
was revoked after he published an earlier story about government spying on war
protesters.

Now Lichtblau has written a book called "Bush's Law: The Remaking of American
Justice." It's about the secret surveillance programs Lichtblau reported on
and about what happened behind the scenes between the Times and the Bush
administration.

Eric Lichtblau, welcome to FRESH AIR.

Mr. ERIC LICHTBLAU: Thanks for having me.

GROSS: Before we get to the story of how you and James Risen broke the
warrantless wiretap story, let's just refresh everybody's memory of what the
warrantless wiretap program is.

Mr. LICHTBLAU: Sure. This program has obviously become so controversial
now. This was a secret program that was approved by President Bush just a few
weeks after 9/11 that really radically shifted the mandate of the National
Security Agency by allowing it to target Americans for surveillance without
going through the courts; which had been really a mainstay principle, that if
the government wanted to listen in on Americans' conversations, it had to go
through a special foreign intelligence court that was created in the 1970s in
the wake of the Watergate abuses, specifically for the idea of preventing
abuses. The presidential authorization by President Bush after 9/11 allowed
the NSA to listen in on the communications and also the e-mail of Americans
suspected of terrorist ties for international communications without going
through that court for the first time.

GROSS: You have new information in the book that was also published Sunday in
The New York Times. So let's talk a little bit about some of that new
information. Some of it pertains to then-deputy attorney general Larry
Thompson, who was supposed to sign off on these warrants and refused to do it.
Why did he refuse?

Mr. LICHTBLAU: Well, it all comes down to the intense secrecy that the
program was shrouded in, and this comes back to Vice President Cheney's
office. He controlled the program from the beginning, and he insisted that a
very, very select few members of the executive branch and of Congress be
allowed to know about it and be read into the program, as they say. There
were all sorts of intelligence officials in the executive branch, who really
had reason to know about what the NSA was doing, who were barred from knowing
about this. The connection to the deputy attorney general, Larry Thompson at
that time, was that he had authority to sign wiretaps for submission to the
Foreign Intelligence Surveillance Act court. And there were a number of
warrants that came out of this NSA program, meaning that they started as
eavesdropping without warrants and eventually became surveillance that the
administration decided to go to the court to get formal warrants for.

And when Thompson looked at some of these submissions from the NSA and saw
that they were of mysterious origins, some new breed of warrant, he was quite
concerned, as I lay out in the book, and Thompson refused. He said, `Whatever
this new breed of warrant is, I am not signing it.' And the intelligence
officials who were in the Justice Department then knew from then on not to
even bring them to Thompson.

GROSS: Well, that's some position to be in. It's your job to sign off on
these special warrants, and the Bush administration isn't telling you the new
program that they're part of, what they're for, why they're needed, and yet
you're expected to just sign them.

Mr. LICHTBLAU: It is. I describe it in the book as an "Alice in Wonderland"
situation; and it was endemic to the program in terms of the topsy-turvy
secrecy that surrounded the program, where you had people who had a
need-to-know basis for knowing what the NSA was doing. It was part of their
jobs, people at the highest security clearance, and it made them difficult for
them to do their jobs. And there were people who I talked to in the
administration who see this as part of the failure of the program and of
broader operations in general at the administration, this almost paranoid
desire to shroud everything in intense secrecy.

GROSS: OK. So you got the guy who's supposed to be signing off on these
wiretaps. He declines to do it because no one's telling him what they're
about. So how does that complicate the whole process?

Mr. LICHTBLAU: It complicated it because what it meant was that only the
attorney general, at that time John Ashcroft, could sign off on this
particular breed of warrants, and it made the entire process more cumbersome.
There were warrants that they needed immediate signatures on. Ashcroft might
have been out of hand. They needed to find him and it delayed the entire
process. And it led indirectly, I would argue, to the famous scene at John
Ashcroft's hospital bedside in 2004, which we've now heard so much about,
which first broke in The New York Times. Because what happened when Larry
Thompson left as deputy attorney general and James Comey took over as deputy
attorney general, among the very few people who knew about this weird "Alice
in Wonderland" situation, there was an effort to get the new deputy attorney
general read into the program, meaning that he would have access to the
program.

That happened; and that was to the detriment of the White House because Comey
had deep, deep reservations about the legality of this program, as we've now
seen, as did the head of the Office of Legal Counsel. And when it came time
for Comey, in the absence of Ashcroft during his hospitalization, to sign off
on this program in March of 2004 and assert to its legality, he refused. So
the fact that he was finally given access to the program as deputy attorney
general had really widespread ramifications in leading to what was, if people
recall, a near-revolt at the Justice Department; where you had the threat of
resignations by more than 20 Justice Department officials because Alberto
Gonzales, then the White House counsel and Andy Card, then the chief of staff,
made this dramatic visit to John Ashcroft's bedside in the hospital to
approach him or demand, depending on who you ask, that he certify the program
and assert its legality, even though his deputy, James Comey at that time, had
refused to do so.

GROSS: So one of your points is that the secrecy that the Bush administration
insisted on ended up making things more complicated in pursuing the war on
terror because secrets were being kept from the FBI and from the attorney
general, and it made this system so complicated.

Mr. LICHTBLAU: Absolutely. We see that time and time again; not only with
the NSA program, I would argue, but with a whole range of counterterrorism
programs, from renditions by the CIA to surveillance of international banking
programs by the Treasury Department. There was, I would argue, an almost
paranoid desire to keep things secret and to avoid, really, the normal checks
and balances that are traditional in government with people within the
executive branch, and certainly within Congress, knowing about sensitive
programs, being able to weigh in on them, and being able to make adjustments
if they think the adjustments are needed.

GROSS: In the meantime, President Bush has asked Congress for broader powers
to spy for the National Security Agency and for immunity for the phone
companies who participated in the warrantless wiretapping. Where are the
Senate and the House on that now?

Mr. LICHTBLAU: Remarkably, we're at an impasse. Congress has been debating
this issue for almost two and a half years now, since we first published the
initial story in The New York Times in December of 2005. What do we do about
the NSA? What do we do about the president's spy powers? The White House
thought it had the agreement of Congress about six months or so ago. It got
enactment of what was called the Protect America Act back in August of 2007 on
a temporary basis to broaden the NSA's spy powers, to give it wider latitude,
to not have to provide what's called individualized suspicion in determining
who they want to target in surveillance.

The Democrats have since bucked up against the White House and have pushed for
more restrictions; and the House in particular has refused to give the White
House what it has sought and has refused to provide immunity for the phone
companies that participated in the 9/11 NSA program. That has been one of the
White House's top, top priorities. President Bush has said over and over
again that we must provide legal protection for those companies that took part
in the program, which are now being sued in some 40 different cases to the
tune of millions, potentially billions of dollars. And the House has refused
to provide that legal protection. There's a bill in the Senate that's already
passed there which would give them retroactive immunity, and we're now at an
impasse.

It's an interesting situation because on almost every major national security
issue prior to this, the White House has won out. It has played the national
security card, has accused Democrats of being soft on terrorism, either
explicitly or implicitly, and has gotten essentially what it wanted on
interrogation, on detainees, on a whole range of issues, military tribunals.
In this case, at least so far, the Democrats and the House have been willing
to push back and have withstood the charges from the White House that they are
making the country in some way less safe. And they have said, `We don't
believe that that's so.'

GROSS: How did you get onto the warrantless wiretap story? Tell us about the
source who first approached you.

Mr. LICHTBLAU: Well, what I describe in the book is this period in 2004,
which we now know in hindsight was a period of intense, intense anxiety within
the administration over the NSA program, when things were really boiling up
within the administration. And I was hearing about things within the Justice
Department from my sources. I largely covered law enforcement and Justice
Department issues. Jim Risen, my partner, who I had worked with on a number
of stories, was hearing things from intelligence and CIA sources. Now,
remarkably, we did not know that we were working on the same story at the
time. I had heard some things about the idea that the FISA court, the Foreign
Intelligence Surveillance Act court, was in some way being circumvented. Jim
had heard some things about a foreign-based intelligence program that was
causing concern. We knew that there was anxiety out there; we didn't realize
for quite a while that we were tugging on the same strand from a ball of yarn.

And it was some months before we had a clear idea as to what we were--what we
were really looking at there, which was a radical shift in a way that foreign
intelligence was being gathered within the United States; and particularly the
fact that the court checks had been circumvented, and that the FISA court was
no longer being used to gather court warrants in the cases of Americans who
were suspected of terrorism and gathering their international communications.
And this was essentially the story that we were reporting by late 2004.

GROSS: After an early draft of this story, James Risen called Michael Hayden,
who was then the head of the National Security Agency; and Risen read Hayden
the opening paragraph of the draft of the story that you had written together.

Mr. LICHTBLAU: Right.

GROSS: Why did he do that?

Mr. LICHTBLAU: Well, at that point he felt that we were ready to go straight
to the administration to say, `OK, what about this?' You know, with any story,
especially one this sensitive, we would go to the administration for comment
at some point along the way, and we felt that we were at that point. In this
case, Hayden did not contradict anything that Jim told him, except to say that
this was a sensitive program and that anything they were doing was intensely
operational and was legal. What that phone call also did, though, was to set
off a series of discussions with the administration; which the administration
called the Times editors, basically to urge them not to run the story.

GROSS: What were some of the dangers the Bush administration described,
things they said would happen if the Times published this story about the
warrantless wiretap program?

Mr. LICHTBLAU: National security would be irreparably harmed. That was the
point that was made over and over again: that this was a vital program that,
if exposed, would make the country less safe; that this was a legal program,
that there was never any doubt about its legality; that it was vital to
tracking terrorists' communications; that if it were exposed, not only would
the telecom companies be harmed financially, but the program would be rendered
so useless they would have to be shut down the next day.

GROSS: Well, let's just take the question of whether it was a legal program
or not. Initially, people who were asked to sign off on the program were told
that it had the president's backing. But what did it lack legally?

Mr. LICHTBLAU: Well, what I describe in the book is the fairly cursory legal
review they got at the start. There was no initial Office of Legal Counsel
review authorizing this program, which is fairly remarkable because this was
such a test of presidential power, in many respects. What John Ashcroft told
his associates, as I quote in the book, is that the White House came to him
for his certification. They required the attorney general to certify the
legality of this program. That they just came to him with the certification,
shoved it in his face and told him to sign it, is what he told his associates.
At that point, his aides became concerned that the attorney general was left
hanging out there because there was no formal legal review, which typically in
a program like this there would have been, from the Office of Legal Counsel,
which basically gives legal guidance for the entire executive branch.

Only after the program had started did OLC, as that office is known, then go
back and do a formal legal review. They got John Yu, who was a deputy in the
office, who wrote several of the more far-reaching opinions on executive
power, not only on this question but also on detainee interrogations and
torture, some of which have now been rescinded. They got Yu to write an
opinion, which authorized the program; but that opinion, looking at the
specifics of the NSA program, looking specifically at what they were doing,
came only after the program had already started. It was depicted to me as
almost an afterthought.

GROSS: And that opinion remains classified, so you can't even read it.

Mr. LICHTBLAU: It remains classified, yeah. It's not even certain exactly
when that final opinion was written. It appears to have been a fairly fluid
draft that began in late 2001 and was finalized in early 2002 before it took
its final form.

GROSS: Well, let's get back to the story of how The New York Times ended up
publishing this story that you and James Risen wrote about the warrantless
wiretap program, in spite of the fact that the Bush administration was saying,
`If you publish this, it will have severe consequences for national security.'
The calendar is approaching the 2004 presidential election, as the Times was
deliberating whether or not to publish this story; and the Times ended up
holding the story, not publishing it before the 2004 presidential election.
Why didn't it run then?

Mr. LICHTBLAU: Well, this was obviously a decision made by the top editors
at the paper, and I think it was a very tough one. I think you got to
remember, these were somewhat different times for the media in 2004. We were
only, at that point, a couple of years after 9/11. I'm not sure, in
hindsight, there were many newspapers that would've gone ahead and published
that story, given the intense, intense pressure and the claims that were made
by the White House. Our reporting had shown a lot of things about the cracks
in the program, about the concerns about the legal foundations. The White
House was armed and ready to refute every single one of those with what, in
hindsight, turned out to be, I believe, mis-statements about how every lawyer
at the Justice Department, for instance, had found this program to be legal.
We certainly know that now in hindsight not to be true.

But, you know, in 2004, those were difficult things for the newspaper to
refute; and we had the White House, at the highest levels, insisting that this
program would harm national security were we to write about it. And I think
the concern from the editors--and I didn't necessarily agree, you know, I
pushed for publication, I don't think that's any secret. The concern from the
editors was would we be merely outing an operational program that was on a
firm legal foundation, and they made the decision that we could not do that at
that point.

GROSS: If you had published before the election, you probably would have been
accused by conservatives of publishing it just before the elections as to tip
the scales against President Bush. But by not publishing it, when the story
got out that the Times didn't publish it, the Times was accused of withholding
an important story that the public should have known about before the
election.

Mr. LICHTBLAU: Right. As one of my editors said during the debate, this was
a story so sensitive that we were going to get slammed either way. There were
no easy answers and no easy solutions; as far as whether to publish, as far as
when to publish, someone was going to be upset about what we did. That was
just the reality of a decision that was this sensitive and this laden with
pitfalls.

GROSS: So after the Times decided not to publish the story of the warrantless
wiretap program, James Risen, who had been reporting the story with you, was
considering publishing a book; and he was considering including in the book
the information that the Times declined to publish about the warrantless
wiretap program. Did the possibility of that book become an incentive for the
Times to go ahead and publish?

Mr. LICHTBLAU: Sure. I mean, there's no doubt that that was a big trigger
in the decision by the editors to re-visit the whole issue. The story had
essentially been on hiatus. We had done very little reporting for months and
months in 2005, and Jim was then considering putting the existence of the
program in his book, which was coming out in, at that point, late 2005 or
early 2006. He told me what he was planning to do. I think we both realized
the sensitivities of that issue. The editors realized the sensitivities of
that. There was an agreement that we would go back and do more reporting,
with the understanding that the bar was still pretty high for us to get that
in the paper, with or without Jim's book, that the initial concerns were still
there; that we still had to show the paper and ultimately the public that
there was a good reason why we were outing a classified program that the
administration maintained was vital to national security. So we had to then
go back, talk to sources, find new ones to again try and find those cracks in
the legal foundations, the tensions within the administration. Not only find
those cracks, but explore them more deeply.

GROSS: So do you think you came up with information the second time around
that more solidly justified publication of the story?

Mr. LICHTBLAU: Well, I think we were certainly aware--you know, going back
to 2004--that there were intense concerns within the administration about
whether or not this was a legal program or whether or not the president had
the authority to do an end run around the FISA court without court warrants,
which essentially what he was doing. Certainly, by virtue of more reporting,
more time, we developed an even deeper understanding. I mean, there's no
doubt about that. And as time went on, those tensions had worsened in some
respects through 2005, by the time we actually published the story. So that
helped us in a way.

GROSS: Because you were able to say there's people within the administration
who think this is an illegal program and a bad idea.

Mr. LICHTBLAU: Right. We were able to show in the final story that this is
a matter of some legal debate. And, you know, it's important to note that we
did not say, and still have not said, in the paper, you know, whether or not
we think this is legal or illegal, right or wrong. You know, that's not our
job as journalists. We do not come down in judgment on that; but we laid out
the legal issues and the legal concerns among people within the administration
who knew about the program and were concerned about it.

GROSS: Eric Lichtblau will be back in the second half of the show. His new
book is called "Bush's Law: The Remaking of American Justice." He covers the
Justice Department for The New York Times.

I'm Terry Gross, and this is FRESH AIR.

(Announcements)

GROSS: So we were talking about how, after The New York Times decided not to
publish the warrantless wiretap story that you had investigated because the
Bush administration said it would create national security problems if the
Times did publish, you and Risen went back, you got more information, found
out about controversies within the Bush administration about the legality over
this program, then the Times decided that they were going to go ahead and
publish the story. Why did they want to publish it the second time around?

Mr. LICHTBLAU: Well, I think by that point our reporting had made clear that
those legal concerns which we'd initially identified were very real and were
very severe, and that a lot of the arguments we were hearing from the
administration about the unquestioned legality of this program were simply not
true. We were questioning them about whether or not, for instance, there had
been concerns raised by members of Congress. And we were told, no, there were
not. We knew, in fact, that there had been concerns raised by some members of
Congress, but we were questioning the White House about whether or not any of
the Justice Department's own lawyers had raised questions about the legality
and had objected to any portions of this. And we were told the Justice
Department had not. We knew, in fact, that that had happened.

So it became more and more difficult in the face of those discrepancies, I
think, for the editors to justify any decision to withhold the story. I think
it became clear the more and more reporting we did that this was a story that
the public deserved to know.

GROSS: But the Bush administration came back at the Times when the Times
decided to publish, saying things like, `If you publish this, if there's
another terrorist attack, there's going to be blood on your hands.'

Mr. LICHTBLAU: Vigorously. No, it was made clear in several meetings that,
again, this was a program that was vital to national security and that if The
New York Times outed this program we would be as responsible as anyone for the
next terrorist attack. And I was not in on the meeting that President Bush
held with our publisher, Arthur Salzberger, but there have been published
reports about that. And I've certainly heard about that from our own people,
and that message was made crystal clear from Bush himself that The New York
Times would be responsible. The metaphor that was used at one point to me was
that The New York Times would be there at the table across from Congress next
to the White House explaining how the next attack had happened.

GROSS: That has to give you pause, no matter how confident you are of a
story. Can you talk a little bit about how you felt at that point?

Mr. LICHTBLAU: Oh, absolutely. No, it was a gut wrenching experience, and
you never have complete confidence in any decision like that. I mean, you
make the best call that you can. And, look, in a decision like this, it was
made obviously by the top editors and the publisher of the paper. I'm just a
reporter. I don't make those decisions. I report on a story. I think that
the paper made the right decision in the end, but being a part of it was, you
know, you're hoping and praying that it works out for the best.

GROSS: OK, so you publish the story and then President Bush criticizes the
Times publishing for the story but doesn't deny it. So what did that mean to
you?

Mr. LICHTBLAU: Oh, to get confirmation like that was about as good as it
gets. I mean, until the end we had questions and doubts--had we gotten this
all right? Were there details that we had misunderstood? This is obviously a
very, very complicated story with lots of operational details. When the story
initially ran in December 2005, for about the first day President Bush would
not comment on it, saying that he doesn't discuss classified matters. Then he
cancelled his Saturday morning radio address and went on TV and acknowledged
the program, and acknowledged that the NSA had, in fact, been eavesdropping on
Americans that it believed were engaged in terrorist activities without
warrants, and that this was a program he considered vital and attacked The New
York Times for printing the story. So to get confirmation like that from the
highest levels was sort of unheard of in my experience.

GROSS: Now, let me back up a second. During the time that the Bush
administration was trying to prevent the Times from publishing the story,
trying to talk the Times out of publishing it, you and other people at the
Times felt that the Bush administration was trying to buy time so that they
could push the renewal of the Patriot Act without the warrantless wiretap
program being exposed.

Mr. LICHTBLAU: Yeah, that was a concern of mine in the midst of these
discussions. In November and December of 2005 the Patriot Act was up for
re-authorization. It originally had been approved, if you remember, in 2001
and it was set to expire in 2005 after a four-year limit. And getting it
renewed was clearly one of the Bush Administration's main priorities.
President Bush had talked about it over and over again, as had Attorney
General Ashcroft. And the private discussions that were going on about the
NSA program were simultaneous to the very public debate about whether or not
the Patriot Act should be re-authorized. And there was sort of a real tension
between the two. It was my concern that the White House was looking to drag
the NSA debate out until it could get re-authorization of the Patriot Act.

Now, as it turned out, our story, through no intentional timing but more for
other factors ran on the very day that the Senate voted on the Patriot Act
re-authorization. And, in fact, there were several senators who cited the
story in deciding to vote against the Patriot Act and it ended up losing.

GROSS: Now, you had heard that the Bush administration was considering filing
an injunction to stop the Times from publishing the warrantless wiretap
program...

Mr. LICHTBLAU: Yeah.

GROSS: ...like the Nixon administration had done to stop The Pentagon Papers.

Mr. LICHTBLAU: Right.

GROSS: And so the strategy the Times used when it decided to publish the
story was to publish it first on the Internet.

Mr. LICHTBLAU: Right. Yeah, that was an interesting sort of coda to the
whole debate. The paper had pretty much all but decided to run the story at
that point, and it even decided what day they thought they were going to run
it. I heard then from a source that there had been indications of--and active
discussions about--invoking a Pentagon Papers-type injunction, going to court
to seek an injunction against publication as they had done in 1971 in The
Pentagon Papers case. And, of course, that was a seminal case in journalism
history in terms of prior restraint issues, and a seminal case for The New
York Times itself. So the immediate effect that that had was a determination
that, if and when we did publish the story, it would go up first the night
before on the Internet, which obviously is a tool that we didn't have
available back in the days of the Pentagon in 1971.

So we lost our scoop. You know, journalism is driven a lot by exclusives. We
lost the exclusive because by posting it on the Internet, all of our
competitors--The Washington Post, etc.--were able to match the story that
night and have it in their Friday papers, too. But at least if there was any
attempt to injunction, we knew that they might be able to stop the presses but
they couldn't stop the Internet.

GROSS: Because even if they demanded you take it down from your site it would
have already been all over, right?

Mr. LICHTBLAU: Right.

GROSS: Let's talk about the consequences after the Times published the story.
Did the Bush administration try to punish you or your fellow reporter on the
story, James Risen, or did the administration try to punish The New York Times
editors for publishing?

Mr. LICHTBLAU: Well, there were certainly consequences. I mean, the most
direct effect was that the FBI almost immediately opened what they call a leak
investigation, and there's now a team of FBI investigators trying to determine
the source of the Times report on the NSA program, as well as a subsequent
story that I wrote along with Jim on a program into the surveillance of
financial banking records. And they have been aggressively questioning people
who really had nothing to do with either story, which has a real chilling
effect. I mean, it's disturbing to see, when you have friends, associates
questioned, in some cases subpoenaed before a grand jury, who had no knowledge
of anything. That has a real chilling effect on your ability to do your job.

GROSS: The way you describe it in your book, the Bush administration has used
certain tools to try to intimidate journalists or limit their access to
information. For example, after publishing a story before the warrantless
wiretap story--and this was a story about FBI surveillance of anti-war
protesters--you had some of your access blocked. What happened to you?

Mr. LICHTBLAU: Well, my relationship with the Justice Department became sort
of tenser and tenser over the years after 9/11. And there were a number of
stories the Justice Department thought were too critical in the view of John
Ashcroft's aides. Then there was one particular story over the FBI's
monitoring of Iraq anti-war protests, and there were tense words exchanged
between the Justice Department and between my bureau chief, and I showed up
for an interview with my press pass, my credentials, and couldn't get in the
door. And was told that my press pass had been cancelled and it was quickly
confiscated. And at that same time I learned that the FBI almost
simultaneously had put out word to its field offices that their people should
not talk to me anymore.

GROSS: And how did that affect your ability to report?

Mr. LICHTBLAU: Oh, I mean, it clearly has a chilling effect. You know, you
feel like there's a black mark on you for essentially just doing aggressive
reporting. You know, if there's certain subjects that are considered off
limits by the administration and you're penalized for writing about them,
you're forced to think twice about the ramifications of every story you write.
You know, if you didn't have reporters who were willing to suffer the
consequences of writing about CIA black site prisons or Guantanamo Bay or
warrantless wiretapping or any number of issues, torture, etc., you know,
stories just would not get written. If it weren't for A, journalists willing
to suffer those consequences and B, confidential sources who are also willing
to discuss them.

GROSS: There's another story that you tell about how the Bush Administration
tried to prevent publication of a story you were reporting in the Times, and
this is a story that is a kind of financial parallel to the warrantless
wiretap story. It's a story about warrantless access to international finance
records, something known as the SWIFT program.

Mr. LICHTBLAU: Right.

GROSS: And the Bush administration sent Lee Hamilton from the 9/11 Commission
to talk the Times out of running the story, and what happened?

Mr. LICHTBLAU: Well, what happened there was that Lee Hamilton made--I
wouldn't even call it a half-hearted effort to stop publication because it was
not really an effort at all. He proceeded to tell us that the White House had
asked him to come talk to us, that from the limited amount he knew of the
program he considered it valuable, but that he was concerned about some of the
broader ramifications on executive power and at that the same time he was
concerned about the secrecy with which this operated. And when we asked Lee
Hamilton at this meeting, at which I was present, why the Times should not run
the story about this financial surveillance program, he said, quite bluntly,
`I'm not telling you not to run the story.' And I know that we were all quite
stunned to hear him say that because this was the person the White House had
sent for the very reason of getting us to not run the story.

And what, for me made this even more remarkable was once the Times did decide
to run that story, for the next several days we heard from the White House
press people and also from some of its allies in the talking head circuit how
even Lee Hamilton, even a Democrat had urged the Times not to publish this
story and we defied the pleas of Lee Hamilton and others, which was just
simply not true.

GROSS: Finally, do you think the Bush administration has become any less
secretive over the years?

Mr. LICHTBLAU: If it has, I have not seen it. I think that, in terms of
Freedom of Information Act requests, in terms of dealings with the media,
there's still a secrecy that really pervades the administration. And I have
not seen much of a change.

GROSS: Eric Lichtblau, thank you so much for talking with us.

Mr. LICHTBLAU: Well, thanks for having me. It's been a pleasure.

GROSS: Eric Lichtblau is the author of "Bush's Law: The Remaking of American
Justice." He covers the Justice Department for The New York Times.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Jules Dassin, film director, talks about his career
and his life
TERRY GROSS, host:

Film director Jules Dassin died at the age of 96 on Monday. In the 1940s,
before he was blacklisted, he made "Brute Force," "Night in the City" and "The
Naked City." After he was blacklisted he fled Hollywood and lived overseas.
In France he made the film "Rififi." In 1960 he made "Never on Sunday,"
directing the actress who later became his wife, Melina Mercouri. He also
directed her in "Topkapi" and several other films. They lived together in
Greece.

I spoke with Jules Dassin in October 2001. He'd come to New York for a
retrospective of his late wife's films at the Film Forum. Dassin grew up in
New York and shot "The Naked City" there. It was one of the first films shot
on location in Manhattan.

Did shooting "The Naked City" make you feel even more attached to Manhattan
than you'd felt before?

Mr. JULES DASSIN: Yes. Yes, because there was this passionate interest that
sometimes became huge problems, because the camera and actors attract people.
And we had to use all kinds of techniques to hide the camera. I had a
portable newspaper kiosk with me. I put the camera inside. I had a flower
delivery van with a mirror that looks out, and most of all I had a marvelous
actor guy who, when the crowd would gather--and they'd learned before, when we
came to shooting a place, the crowds were already there. They had checked
with hotels or where actors were, and they knew where we would be. And
sometimes I would turn up and there'd be hundreds of people, literally. And
this actor friend was very important to us, because about a few blocks away we
would set up a ladder. He would get up on the ladder, wave an American flag
and begin to agitate, and people would rush to him, and I'd get my shots
quickly and get out.

GROSS: That's really funny. So you had an actor who was a decoy.

Mr. DASSIN: That's right.

GROSS: And you were able to shoot undercover, because you hid in this
portable kiosk or in the flower truck.

Mr. DASSIN: Well, in such situations, there was no place to hide the camera,
that's when we used our public speaker.

GROSS: That's really great.

Mr. DASSIN: Yes.

GROSS: A few years after you made "Naked City," you were blacklisted. How
did you know that you were blacklisted?

Mr. DASSIN: I think I read it in a newspaper. I had been invited to come to
make a film in Italy, and I--didn't work out. We agreed to disagree. And
while I was in Rome, I decided I would go to the Cannes Film Festival. And
when I was there, I learned that I had been enlisted into this noble brigade
of refugees and subversive characters.

GROSS: And what did you decide to do?

Mr. DASSIN: I decided to go right back to the US states. But I was waiting
to be called, was not for a while, and then I was engaged to--because New York
did not admit a blacklist; the theater would not be intimidated--and I was
engaged to direct, of all things, a musical revue starring Bette Davis. And I
said `fine,' because it was a job, and went into rehearsal and a fellow turned
up with a subpoena to come to Washington to testify. And I was very
frustrated because I said, `Well, I can't go now. I have the responsibility
of this play. They'll have to wait, and they'll have to wait for quite a time
because we're going to take it out of town,' you know, as you try these plays
before you bring them to New York.

And this guy who served these subpoenas became a buddy. He came to these
different cities and said, `Hey, hey, hey, hey.' He would call me `Julie,' as
a matter of fact. `Hey, Julie, you're in trouble. You'd better go.' And I
said, `I will not discharge--I have this responsibility and I'm going to
finish, and I'll be in Washington the very next day.' And a day or two before
we opened in New York, there's a telegram that came signed, and they said,
`These hearings have been indefinitely postponed,' so I never got to make my
heroic speech--frustration.

GROSS: You ended up making your next movie in France. Had it become
impossible to work in the United States?

Mr. DASSIN: Well, it became impossible because I knew once I was named as a
subversive, and that I understood the blacklist had, by that time, been well
entrenched, there was no work, and people avoided you. Friends would pretend
they didn't see you, and I had a family to feed. And I was offered a film in
France, a film with the actor, that great comic actor, his name was Fernandel,
and I grabbed, leaped at it.

A few days before we were to shoot, the actress whom we had hired, an American
actress, came weeping, said `I have been told if I work for Mr. Dassin I will
never get a job in America again, and so I'm obliged to leave. Excuse me, I'm
out.' And this gave the producer a little bit of shock, but I said, `Well, we
can cast that again,' and we began to do that, and then he got another message
from a man whose name I'll tell you, and whose name--I'll never forget it:
Mr. Roy Brewer, who was the president of the technicians' union in
California. And his message to the producer was that `if you make this film
with Mr. Dassin, it will never see a release in the States, nor will any film
you ever make from then on be released in the States.' And they took this
threat seriously, and I was out of a job. And that went on for about four
years, until "Rififi" came up.

(Announcements)

GROSS: Let's get back to the interview I recorded in 2001 with film director
Jules Dassin. He died Monday at the age of 96. His films include "Brute
Force," "Night in the City," "The Naked City," "Never on Sunday," and
"Topkapi." When we left off we were talking about getting the offer to make
his now-classic heist film "Rififi."

Let me read something Francois Truffaut said about it. He said, `Out of the
worst crime novel I have ever read, Jules Dassin has made the best film noir I
have ever seen.' Were you skeptical of making the novel into a movie? Did you
dislike the novel as much as Truffaut did?

Mr. DASSIN: I was not enchanted by it, but it was a job.

GROSS: You wanted to work.

Mr. DASSIN: And there was just this section of the--in the novel, which was
about a heist, a robbery--and I decided to make the film, build it around
that. So all the themes, ideas, and some racist notions in the book I did not
have to face. As a matter of fact, I became friends with the writer, the
author of the book later on. But it was so glorious and wonderful to work
again after five years.

GROSS: I guess the exhilaration of working again is part of what we're seeing
in the movie.

Mr. DASSIN: I hope so. I would be glad if that were true.

GROSS: The most famous scene in "Rififi" is the actual jewelry heist. This
is a scene of close to 30 minutes.

Mr. DASSIN: Yes.

GROSS: There's no dialogue and there's no music...

Mr. DASSIN: Yeah.

GROSS: ...as these guys work without making a sound.

Mr. DASSIN: That's right.

GROSS: Why did you shoot it without dialogue or music?

Mr. DASSIN: I just felt it that way, and I think it came from my trust in
the characters as written and as played. They had no need to talk or
communicate. They were professionals. They knew each other. They
anticipated each other, and they knew that noise was an enemy, noise was
dangerous. They worked quietly, efficiently, and in touch with each other,
contact that was very strong, and it worked better in the silence.

GROSS: Now, most filmmakers, I think, would have put music underneath,
suspense music or some kind of music.

Mr. DASSIN: Oh, I think then you've heard my story, a story. There's a
wonderful composer in French history, as a matter of fact--his name's Georges
Auric--who also did film work. He's written some marvelous stuff for movies,
and he said, `I look forward to writing music for this huge sequence.' And I
said, `No, I don't want music.' He said, `You're mad. You're mad.' And the
producer said, `You're mad. You're going to have 30 minutes without dialogue,
without music?' I said, `That's what I hope.' And he said, `Look, I'm your
friend, I'm going to cover you. I'm going to write the music.' I said, `I
don't want it.' `I'm going to write it.' And he did, almost a symphony.

And this wonderful guy, I invited him, I said, `Come to a screening. I'm
going to show you the film once with music and once without music, and I want
you to tell me what you think I should do.' And he sat through both versions,
and he said `music out!' Wonderful guy.

GROSS: Now, do you think that audiences early on realized that there was no
sound and...

Mr. DASSIN: Oh, yes indeed.

GROSS: ...no dialogue, or did it just work on them unconsciously?

Mr. DASSIN: Well, I trapped them a little bit because there was one sound I
did make. The guy accidentally touches a piano key, and when I saw that with
an audience and they gasped when he made that sound, I said, `OK, we're in.
They don't want him to make any noise.'

GROSS: Film director Jules Dassin recorded in 2001. He died Monday at the
age of 96.
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