June 13, 2011 | National Review Online

Surprise! The Times Attacks the Messenger

Linda Greenhouse is conflicted, so obviously the problem is Ed Whelan.

A few months back, National Review Online published an article in which I argued that the New York Times’s woeful reporting on Judge Michael B. Mukasey — then a nominee, now serving as U.S. attorney general — was proof positive, as if more were necessary, that the Grey Lady had become an unreliable shill. Its news coverage, I contended, had “devolve[d] into Left-wing polemic, to the point where there is no longer a qualitative difference between the Times and The Nation. Save one: The Nation, self-described ‘flagship of the left,’ has no pretensions about being anything other than The Nation; the Times still pretends to be the Newspaper of Record.”

I didn’t expect anyone to take my word for it. Instead, I went painstakingly through reporter Philip Shenon’s “news” story to demonstrate how dreadfully incomplete, misleading and agenda-driven it was. You can judge for yourself whether I was successful, but if my e-mail is any indication, I was.

I most appreciated the reaction of some journalist friends. I was angry about what the Times had done, but I wasn’t the least bit surprised. By contrast, my journalist friends seemed genuinely stunned at the degree of shoddiness. It was not the New York Times they had once known and admired. Repeatedly came the refrain: I should send my article to the newspaper’s “Public Editor” — its ombudsman, or, as the Times preciously posits, the “readers’ representative.”

Though understandable, I still found the suggestion curious. After all, by my lights, the Times is not objective; it has become a partisan hack. If I’d written in, I’d have implicitly conceded something I didn’t believe to be true: that the newspaper is an honest broker from whom it is reasonable to expect straightforward introspection. I didn’t think the reporter and his editors had made a mistake, or even a series of them. I believe, instead, that the newspaper is invested in its anti-Bush, anti-anti-terrorism narrative and spins or elides facts as necessary to make stories fit. I wouldn’t have felt vindicated if the Public Editor said I was right (which, naturally, would never, ever happen), nor was I likely to be persuaded were he to say I was wrong. In truth, the probability was that he’d ignore me in any event. What, I asked myself, would be the point? So, life being too short, I dropped it.

I do feel vindicated now, though, thanks to my friend Ed Whelan, the brilliant legal analyst who heads the Ethics and Public Policy Center and edifies us daily at NRO’s law blog, “Bench Memos.” Ed’s head is harder than mine — it needs to be since there’s so much more in it. So he decided to crash it into the brick wall that I avoided.

Ed determined to take a complaint to the Public Editor. At Bench Memos, he had pointed out that the Times’ heralded Supreme Court reporter, Linda Greenhouse, had a stark conflict of interest: She was reporting on crucial war-on-terror cases in which her husband, prominent D.C. attorney and Bush-administration critic Eugene Fidell, had participated as a litigant. Specifically, Fidell, whose specialty is military law, had participated in amicus briefs filed on behalf of enemy-combatant detainees — such delightful chaps as Salim Hamdan, Osama bin Laden’s former bodyguard and guy-jumah.

Though the conflict was patent, Greenhouse and the Times chose not to disclose it to readers, even though it was something about which they had thought carefully before staying mum. For example, in some fairly hilarious parsing after Whelan called her on it, Greenhouse insisted that Fidell had not represented a “party” in the cases. Okay … but how does that help? An amicus never formally represents a party. Amici are permitted to file briefs in aid of the court’s consideration of a case upon showing that they have a stake in the outcome — that is, unlike parties, who are not necessarily litigating by choice (Hamdan, for example, would prefer not to be at Gitmo), friends of the court choose to jump into cases and are allowed to do so because they are strongly interested.

Fidell, moreover, removed his name from the Supreme Court amicus brief his organization, the National Institute of Military Justice (lavishly funded by George Soros), filed in the more recent Boumediene case — which, as anyone familiar with Greenhouse’s always-balanced reporting can tell you, involves whether it was proper for Congress, in its “waning weeks under Republican control,” to engage in “court-stripping action … in light of the Constitution’s injunction to Congress not to suspend ‘the privilege’ of habeas corpus.” Greenhouse has acknowledged her husband struck his name precisely because he knew she was reporting on the case. Their tracks, however, were not covered: He had already signed the brief his organization filed on behalf of the same detainees in the lower court; and even in the Supreme Court, Fidell was listed in the amicus brief submitted by another entity, the Constitution Project, as one of the signatories to its “Statement on Restoring Habeas Corpus Rights Eliminated By The Military Commissions Act.”

Why was Fidell’s involvement in the cases a “patent” conflict for his wife’s reporting on them? Well, if that’s not plain enough on its face, one could rely on the generally applicable legal standard, which counsels counsel to avoid “even the appearance of impropriety.” But why resort to such arid rules when we have the New York Times itself as our compass.

The Times is ever quick to find conflicts of interest, just not in its own house. For example, one could only be astonished (which, by the Grey Lady’s standards, is saying something) when the newspaper — a plaything passed down from Sulzberger to Sulzberger — elected to fret at length about “neo[con]-nepotism” at Commentary. The magazine had announced that the highly accomplished John Podhoretz had been chosen to become its next editor: clearly a merit promotion notwithstanding that John will assume the prestigious seat his legendary father, Norman, occupied for decades.

Then there was another Times fave, Justice Antonin Scalia, who outraged the editors because he would not recuse himself from a case in which the high court considered a Bush administration task force — after all, the Justice had gone duck-hunting with [shudder] Dick Cheney. “It is an elemental principle of law,” the Times railed “that judges must not have, or even appear to have, an interest in the cases before them.” Why, “[t]he public wants judges to avoid even the suggestion of bias[.]” In fact, you know, when you get right down to it, “the biggest problem” with these sorts of conflicts, based on the intimate bonds society recognizes when a man and a man hunt ducks together, “is the lack of effective enforcement.”

Former World Bank President Paul Wolfowitz? Sure, he had fully disclosed his romantic relationship with a subordinate before coming to the bank, and, with the board’s knowledge, had made arrangements to ensure that she was moved out of his chain-of-command. But that wasn’t good enough for the Times: He had approved a raise to compensate this professional woman whose career had been potentially damaged, a raise that was comparative chump-change by World Bank salary standards. Clearly, the editors insisted, he had to go.

Indeed, speaking of Wolfowitz, the editors have also just about had it with the ethical insensitivity of the whole damn Bush administration. “Across six years,” they pronounced several months ago, the president had “mocked all standards of conflict of interest by choosing private industry zealots for high regulatory posts” — a practice the Times apparently found novel (especially compared, say, to the ever-scrupulous Clinton administration).

So let’s see: John and Norman Podhoretz, Justice Scalia, Vice President Cheney, former Defense Secretary Paul Wolfowitz, and President Bush, all of immensely questionable probity. But Linda Greenhouse covering cases her husband is litigating and writing reports sprinkled with points he might even have made himself? No problem.

Anyone detect a pattern here? Naaaahhh. Just the Grey Lady calling ‘em as she sees ‘em.

Well, no matter how hard a head he may have, I hope Ed was wearing his helmet.

Though Whelan is the reader, and Public Editor Clark Hoyt fancies himself the readers’ representative, the ombudsman sounded an awful lot like a Times flack this weekend. Predictably, Hoyt portrayed Whelan’s complaint as a case of the beleaguered “Pulitzer Prize-winning Times reporter who has covered the Supreme Court for nearly 30 years” on the receiving end of “bullying” by “[a] conservative blogger” who is “president of the conservative Ethics and Public Policy Center,” and “who takes frequent shots at Greenhouse.”

Hoyt risibly claimed that no bias could be found in Greenhouse’s actual coverage of the cases. To the contrary, as Ed points out, the esteemed law professor Peter Berkowitz, for one, has offered a devastating critique. Yet, that’s entirely beside the point. In conflict-of-interest situations, the idea is that some relationships, like the marital relationship, are nearly as intimate those formed in duck-hunting. The bias is inherent and presumed.

Hoyt couldn’t quite bring himself to defend Greenhouse. So he did the next best thing: he gave her and her editors a mild tap on the wrist, then set about the more pressing task of killing the messenger. Whelan was castigated as “intemperate,” engaged in “personal attacks,” and (did I mention this?) “conservative.”

The readers’ representative recounted discussing the matter with Times editor Bill Keller. Tellingly, Keller said he “does not want to single out Greenhouse … because it would appear to be a tacit rebuke in the face of a partisan assault.” And so, at last, we stumble into the truth. The Times is not a newspaper. It is a partisan, self-consciously engaged in partisan battle.

Objectively, there is nothing ideological about a conflict of interest. It is relationship-based, and you either have one or you don’t. For the Times, however, what matters is that an undeniable conflict was raised by a conservative. That makes it part of the permanent campaign, the Times’s ideological project. There can’t be any admissions because that would hurt the cause. For a partisan, the cause is bigger than any conflict.

Here’s my conflict: I’m sympathetic to Ed — how could I not be? I like him, I don’t like the Times, so I’m naturally inclined to see things this way. But what I don’t get is why anyone should care anymore.

As if reading the Times and reading Linda Greenhouse over the years weren’t enough to hammer the point home, the Pulitzer laureate gave a speech at Harvard less than two years ago, inveighing against the Bush administration. In her mind, the mind through which she perceives the cases she covers, the administration has

    turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.

That’s the prism of the reporter the New York Times finds most suitable to inform its diminishing pool of readers about proceedings before the Supreme Court.

How could anyone possibly accuse her of having a conflict of interest?

— Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

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