The New York Times and the Obama administration have created a disturbing collaborative pattern that asserted itself again on Sunday with the paper's long article purporting to describe the events leading up to the execution by the CIA of US citizen Anwar Awlaki. Time and again, the Obama administration shrouds what it does with complete secrecy, and then uses that secrecy to avoid judicial review of its actions and/or compelled statutory disclosure under the Freedom of Information Act. "Oh, we're so sorry", says the Obama DOJ, "but we cannot have courts deciding if what we did is legal, nor ordering us to disclose information under FOIA, because these programs are so very secret that any disclosure would seriously jeopardize national security."
But then, senior Obama officials run to the New York Times by the dozens, demand (and receive) anonymity, and then spout all sorts of claims about these very same programs that are designed to justify what the US government has done and to glorify President Obama. The New York Times helpfully shields these officials - who are not blowing any whistles, but acting as government spokespeople - from being identified, and then mindlessly regurgitates their assertions as fact. It's standard government stenography, administration press releases masquerading as in-depth news articles.
Sunday's lengthy NYT article on the Awlaki killing by Mark Mazzetti, Charlie Savage and Scott Shane is a classic case of this arrangement. It purports to provide "an account of what led to the Awlaki strike" that is "based on interviews with three dozen current and former legal and counterterrorism officials and outside experts." But what it really does is simply summarize the unverified justifications of the very officials involved in the killing, most of whom are permitted to justify themselves while hiding behind anonymity. It devotes itself with particular fervor to defending the actions of former Obama OLC lawyers David Barron and Marty Lederman, who concocted the theories to authorize due-process-free assassinations of American citizens (those same Democratic lawyers were, needless to say, among the most vocal critics of the Bush administration's War on Terror policies that denied due process and relied on rampant secrecy).
There are many points to make about all of this. To begin with, will the Obama administration - which has persecuted whistleblowers with an unprecedented fervor and frequency - launch a criminal investigation to determine the identity of the "three dozen current and former legal and counterterrorism officials" who spoke to the NYT about the classified Awlaki hit, or, as usual, are such punishments reserved for those who embarrass rather than glorify the president?
Moreover, why can Obama officials run to the NYT after the fact and make all sorts of claims about the mountain of evidence providing Awlaki's guilt, but not have done the same thing in a court of law prior to killing him? As the NYT notes, when the ACLU sued on behalf of Awlaki's father seeking to enjoin Obama from killing his son, the Obama DOJ invoked the "state secrets" privilege, insisting that the evidence against Awlaki was so secret that national security would be jeopardized if disclosed to the court: the very same alleged evidence that Obama officials are now spilling to the NYT. They also deliberately refused to indict him, which would have at least required showing some evidence to a court to justify the accusations against him and would have enabled him to turn himself in and defend himself if inclined to do so.
All of this highlights why it's so odious to prosecute and convict people in a newspaper after you execute them, rather than in a court of law before you end their life. As but one example, the statements about Awlaki from attempted underwear bomber Umar Abdulmutallab on which the NYT heavily relies to assert Awlaki's guilt would have been subjected to intense cross-examination to see if they were simply the results of Abdulmutallab giving the government what they wanted - namely, statements that incriminated someone they wanted to kill - in exchange for favors as part of his plea agreement. It's so basic, though the NYT seems not to have heard, that statements made by accused criminals in exchange for favors as part of a plea bargain are among the most unreliable.