Why Is Rick Perlstein Sliming Lawfare?

On Friday of last week, Rick Perlstein of the Nation, wrote this post, in which he claimed that the New Republic was “taking money from an NSA contractor to run defenses of the NSA.” The post also implicated Lawfare. Perlstein argued that “[t]he National Security Agency has a friend at the Harvard Law School. And at the Brookings Institution. And at The New Republic. And at The Washington Post.” He claimed that Benjamin Wittes, who is the editor-in-chief of Lawfare, has “been blogging on the report on the abuses of the National Security Agency just out from the President’s Review Group on Intelligence and Communication Technologies, in terms highly favorable to the super-secretive and media-shy agency. He also enjoys extraordinary access to the NSA, for instance in this series of podcasts with its top officials. (“We Brought In a Recoding Device So You Don’t Have To,” the series is titled—cute!)” Perlstein further adds:

Why is Lawfare the NSA’s media portal of choice? Well, consider this. Lawfare, in turn, partners with The New Republic, where this post was republished in its entirety. The joint Lawfare/TNR project is titled “Security States,” and it is sponsored, Wittes proudly notes, by the Northrop Grumman Corporation. Grumman, in turn, is a major NSA contractor—see this $220 million deal it scored with the NSA “to develop an advanced information management and data storage system that will support efforts to modernize the nation’s electronic intelligence and broader signals intelligence capabilities,” a fact TNR does not disclose to its readers.

And the NSA is apparently well-pleased with the arrangement. “Check out Lawfare’s interview with NSA’s acting Deputy Director Fran Fleisch,” the agency enthused today, one of the NSA’s public affairs office’s six breathless tweets booming “Lawfare” over the past five days. Surely they also enjoy the laundering of the content of “the indispensable Lawfare blog” through The Washington Post, courtesy of its hack right-wing blogger Jennifer Rubin. (“The NSA will falter unless Obama does his job.”)

Meanwhile, Wittes’s Lawfare co-blogger Jack Goldsmith, late of George W. Bush’s Pentagon and Justice Department, is a professor at the Harvard Law School, but does not disclose any conflict of interest, as most Harvard Law professors do, for being part of such a project sponsored by a commercial entity.

Boiling all of this down, Perlstein is alleging that (1) Lawfare is blogging on law and national security issues; (2) Lawfare’s blogging is favorable to the NSA’s point of view; (3) Lawfare does informative podcasts with members of the NSA; (4) the Lawfare project is partnered with the New Republic; (5) Northrop Grumman sponsors the joint project; (6) Northrop Grumman “scored” a $220 million contract with the NSA; which leads to (7) conflicts of interest for Jack Goldsmith, who is called upon by Perlstein to disclose “whether he is paid by Northrop for his posts at Lawfare, and whether he thinks he has disclosed that to his Harvard employers, and whether he should make the arrangement public.”

If you think that all of this is an incredibly lame series of accusations to make against Lawfare and the New Republic, you are not alone. Benjamin Wittes responds to Perlstein’s accusations by pointing out that Perlstein ran his piece without checking any of the facts with either Wittes, or Goldsmith, or TNR. Perlstein only asked for reactions after running his piece, and after Wittes sent in corrections, Perlstein ignored them for a time. Wittes points out that Northrop Grumman only sponsored the joint Lawfare/TNR project (called Security States) for the month of October, and that as far as Wittes is concerned, he would not mind more sponsorship (who would?). Furthermore:

. . . not a dime of the money from the sponsorship we used to have from Northrop has been paid to Jack or anyone else for writing for Lawfare. Lawfare is a labor of love for all involved. It is a tiny non-profit we are working to stand up, one from which nobody is getting paid—let alone getting rich.

Third, the Security States project with the New Republic, in any event, had nothing whatsoever to do with the “Inside NSA” podcast series, which developed–as Bobby and I made very clear on the site–out of dialogues Bobby has been organizing between the agency and academics.

Perlstein got one thing right: I am, as he alleges, not a lawyer.

Further correspondence between Perlstein and Wittes is found here. Note Wittes’s discussion of how long it took for Perlstein to respond to Wittes’s reply and corrections; Perlstein, it should be clear by now, is no one’s definition of a responsible journalist. Bizarrely, in response to Wittes’s original reply, Perlstein sent the following head-scratcher:

What’s your speaking fee?

Will you release the agreement—who got paid, and how much? If N-G had any oversight over content? I’m also interested if they were promised pieces on drones.


Several responses come to mind: (1) Who cares what Benjamin Wittes’s speaking fee is? (2) Wittes said that no one at Lawfare got paid, so why is Perlstein asking for information on “who got paid, and how much”? (3) What basis is there to allege or wonder “[i]f N-G had any oversight over content,” or “if they were promised pieces on drones”? In any event, Wittes showed more patience with Perlstein than anyone ought to, and pointed out that “I have never received a speaking fee from either NSA or from N-G of any size. N-G had no oversight over content with respect to Security States and was not promised pieces on drones or NSA matters either. Editorial content was the province of Lawfare and TNR alone.” Wittes also made the entirely sensible point that given Perlstein’s lack of good faith, there is no reason whatsoever why any agreement should be shared with him.

Now, Perlstein has come back with a new post that is full of new allegations. Let’s take them in turn:

On Friday I posted a short piece in which I said that (1) Benjamin Wittes, co-director of the Harvard Law School-Brookings Project on Law and Security, has been blogging at his website Lawfare “on the report on the abuses of the National Security Agency just out from the President’s Review Group on Intelligence and Communication Technologies, in terms highly favorable to the super-secretive and media-shy agency”; (2) that The New Republic’s website republishes his posts and others from the Lawfare group blog in a project entitled “Security States” that is sponsored by Northrop Grumman, a major NSA contractor; and (3) that Wittes and his colleagues enjoy extraordinary access to the NSA, as suggested by a series of interviews they’ve published on the site with top NSA officials. I drew a connection between all of these things. Then I sent the post to TNR’s editor Franklin Foer and to Wittes, promising to publish their responses. What I learned was that the problem isn’t as bad as I originally described. In fact, it’s worse.

“It’s worse,” eh? Quite a setup. This tempest in a teacup that Perlstein has generated had better be worth something with that kind of introduction.

Here is what Franklin Foer, who is an old friend (I hired him for his first journalism internship) wrote back to me:

We’ve been running pieces from Lawfare for many months—and we’ve been running pieces by Ben and Jack for many years. They are valued contributors, sharp minds, genuine experts, and ideologically unpredictable. (Jeff Rosen, another treasured contributor and our legal affairs editor, has long been one of the most important critics of the surveillance state.) When our collaboration with Lawfare was sponsored by Northrop—which was just the month of October—it was clearly disclosed on each article page.

I spent Monday researching Foer’s claim of full disclosure of Northrop Grumman’s sponsorship. Let’s not bury the lead here: what Foer said does not seem to be true.

An announcement of the new collaboration between TNR and Lawfare on September 30, 2013, at Lawfareblog.com (“Coming Tomorrow: Teaming Up With The New Republic) stated, “We are calling the project, which is being sponsored by the Northrop Grumman Corp, ‘Security States.’” An announcement under Wittes’s byline at NewRepublic.com on October 1 says nothing about any sponsorship, and a third announcement, a press release on the same day the same day at NewRepublic.com, concluded, “This partnership is made possible by Northrop Grumman, a leading global security company.” That is the only mention of Northrop Grumman sponsorship of TNR content I can find on their website—ever. Going through each online page with posts tagged as part of the “Security States” series in October, the sponsorship was not “clearly disclosed on each article page.” As this forlorn little Googlewhack reveals, it was in fact revealed on none of them.

Frankly, who cares? Lawfare disclosed the sponsorship, as did TNR. Whether or not it was “disclosed on each page” is immaterial; the initial disclosure to Lawfare’s readers and to TNR’s ought to have been and was more than enough to put those readers on constructive notice of what was going on. If Perlstein’s further investigations really did reveal “worse,” then he is going to have to do a lot better than this to generate a scandal. [SEE UPDATE AT THE BOTTOM OF THIS POST–ed.]

I sought clarification from Foer: did I misinterpret his response? He wrote back, “Northrop doesn’t advertise with us on our site now. That was a month-long deal that ended.” I took him to be saying, perhaps, that the posts published under the “Security States” tag during the period of sponsorship mentioned the sponsorship, but only while that sponsorship was ongoing. However, using the Internet Wayback Machine, I checked for how a post made on October 17 showed up the next day, on October 18—and could find no indication of sponsorship there, either. I followed up by asking Foer about that, too. He replied, “”Northrop was an advertiser. They were promised nothing, other than prominent placement on Security States pages.”

He had appended to his original response “what I hope would be obvious: Nobody from our staff or Lawfare ever had any contact with this specific advertiser; and advertisers never have any say in what we produce.” That’s fine. I don’t doubt him. But to summarize, there was no way to know the arrangement had ended; so Wittes is off-base for knocking me for not knowing the arrangement had ended. Indeed there seems to have been no way, really, for most of The New Republic’s readers to know it ever began. Trusting New Republic readers consumed prose sponsored by Northrop Grumman, concerning issues in which Northrop Grumman had a direct financial interest, without being aware of the fact. I’ll have more to say about that below—because the stuff about the NSA is only the beginning of the problem. The drones are the bigger issue.

If Perlstein wanted to know whether “the arrangement had ended,” all he had to do was to contact Foer, Wittes and/or Goldsmith before running his piece. That he didn’t do so made Wittes entirely on-base in “knocking” Perlstein “for not knowing the arrangement had ended.” The further claim that “there seems to have been no way, really, for most of The New Republic’s readers to know it ever began,” is equally ridiculous, since, as we saw above, both Lawfare and TNR disclosed Northrop’s sponsorship of Security States.

Responding to Wittes, Perlstein gives us the following:

It’s odd. Soon after my post, Wittes blogged that the Lawfare/TNR partnership no longer had “active sponsorship from Northrop, though I sincerely wish we did and look forward to working with them (or other companies) in the future.” Yes, that’s right: his defense against the accusation of taking money from a defense contractor while producing journalism that specifically impacts that defense contractor was to publicly solicit more money from more defense contractors. Lawfare is published by a non-profit, the Lawfare Institute. It is read by a few thousand people, among them the most powerful decision-makers in the Washington D.C. firmament. It leans right. It likes drones and the NSA. It is also full of smart analysis, valuable analysis, that nonetheless becomes the less valuable the more doubts persist about the independence of its publishers. So who are its funders? Indeed, why does it need funders? Publishing a blog doesn’t cost a penny.

Again, several responses spring immediately to mind. (1) It is neither illegal or unethical for bloggers to say “I wish we had sponsorship or advertising that supported out site,” and there are plenty of bloggers on both sides of the aisle who seek sponsorship and advertising, so Perlstein’s faux-outrage regarding this issue is bizarre and absurd. Just out of curiosity, will Perlstien be attacking left-of-center bloggers anytime soon for having fundraisers or hosting ads? Somehow, I doubt it. (2) Stating that Lawfare’s analysis “becomes the less valuable the more doubts persist about the independence of its publishers. So who are its funders?” presumes that there are any credible doubts about the independence of its publishers (Perlstein has raised none whatsoever). As for the issue of funders, Lawfare has a PayPal button on the right hand sidebar, which solicits donations. Above that button, we are told that Lawfare has filed a pending application for 501(c)(3) status. Wikipedia informs us that “[c]onsumers may file IRS Form 13909 with documentation to complain about inappropriate or fradulent [sic] (i.e., fundraising, political campaigning, lobbying) activities by any 501(c)(3) tax-exempt organization,” so if Perlstein wants, he can write up the Lawfare Institute. I highly doubt that his complaint will be taken seriously, even by the IRS, though I can certainly understand if people feel otherwise.

But Lawfare solicits sponsors nonetheless. And maybe a super-human being would be able to do that without the temptation to self-censor—without refraining from publishing the sort of content that would make that stated priority difficult. But unless you believe Benjamin Wittes is a super-human being, it’s hard take Lawfare seriously as an impartial source of analysis. Writing bad things about the sponsor’s products is bad for business; that’s why serious publications maintain a rigid wall between ad sales and editorial—and don’t try to sell sponsorship in the very pieces in which they defense their editorial independence!

After you read the above, look to your right at all of the sponsorships and advertisements found on the pages of the Nation. I currently see advertisements for the New York Times, and the Vanguard Group. Assuming that this is not the product of algorithms (I read the Times, but don’t do web searches for investment funds), presumably, Perlstein is signaling that neither he nor anyone else at the Nation can write about the Times, Vanguard, or financial planning in general “without the temptation to self-censor.”

Consider, too, what with Wittes describing his outfit as a tiny nonprofit: these guys are not just some random dudes blogging out their idle thoughts out into the Internet ether. According to a feature in CQ Weekly this past spring, “When the House Judiciary Committee summoned experts in February to testify about the legality of drone strikes on U.S. citizens, all of them came from one blog: Lawfare. And when California Democratic Rep. Adam B. Schiff wanted to draft legislation creating a court to oversee such strikes, he consulted with one of the founders of Lawfare, Jack Goldsmith. It’s a common phone call from Capitol Hill to experts who write for the blog.”

A tiny nonprofit? Sure, why not. But here’s another fascinating detail in the CQ piece: the site gets only 2,000 to 3,000 visits a day, but “[a]mong the top six cities reading Lawfare in 2013 are Washington; Arlington, Va.; and McLean, Va., the latter two the neighborhoods of the Pentagon and the CIA.” (I wonder if traffic of late has increased from Laurel, Maryland, the site of the NSA’s Ford Meade headquarters.)Their writers may not get paid. But they certainly earn plenty of political capital from the association—specifically with the national security state’s reigning right-leaning powers that be.

Nowhere has Lawfare hid the fact that its writers are esteemed experts on law and national security issues, and that their opinions are sought by policymakers. If one searches for “testimony” at the site, one comes up with a host of blog posts, including instances where Lawfare writers gave testimony (here is one such example). Heck, if one bothers to Google “Benjamin Wittes”, one encounters his homepage, which has–wait for it!instances when he testified before Congress. I am still waiting to find out all of the “worse” things that Perlstein claims to have discovered.

The CQ Weekly piece cites Andrew Prasow, senior counterterrorism counsel at Human Rights Watch, who “criticizes Lawfare for its authors’ frequent defenses of surviving elements of Bush’s anti-terrorism policies.” The joint Lawfare/TNR project also, it’s true, publish great stuff that does not—even left-leaning stuff. For instance, there’s this outstanding five-part series on why corporations should be liable for design flaws in their software that make customers vulnerable to cybersecurity breaches. But (concern-troll alert) good dissenting writers won’t publish stuff there for long if their editors keep squandering credibility by selling themselves to the highest defense-contractor bidder.

For those keeping score, one month of  Northrop Grumman sponsorship of Security States is apparently enough to justify bamboozling Perlstein’s readers by claiming that the editors of Security States “keep squandering credibility by selling themselves to the highest defense-contractor bidder.” “Keep“? One month of sponsorship constitutes editors who “keep squandering credibility,” with the entirely unsupported suggestion that they continue to “sell themselves” to “the highest defense-contractor bidder”? Again, there is no evidence whatsoever that any sponsorship occurred beyond the month of October. There is no evidence whatsoever that there was any sponsor other than Northrop Grumman for that one month. And yet, we are supposed to believe that the editors of Security States are engaged in the continuing practice of “squandering credibility by selling themselves to the highest defense-contractor bidder.” Joseph McCarthy would be proud of this bit of demagoguery.

For guess what else Security States publishes? A piece, during that golden month underwritten by Northrop Grumman, headlined “Armed Robots: Banning Autonomous Weapons Systems Isn’t the Answer.” In it, authors Matthew Waxman and Kenneth Anderson, two members of the right-wing Hoover Institution Task Force on National Security and Law, argue that armed drones “programmed under certain circumstances to select and fire at some targets entirely on their own” are “not inherently unethical and unlawful, and they can be made to serve the ends of law on the battlefield…through existing normative framework,” and that to “preemptively ban the development and use of autonomous weapons systems” would be “unnecessary and dangerous.”

Now, for all I know, they have a point. (It sounds nuts to me, but hey, I’m not the expert.) And I’m sure these cats are sincere in their belief. But I’d still trust them more if the conclusions weren’t so, um, salubrious to a certain corporate sponsor. For a global ban on drones that deal death via artificial intelligence algorithms would be pretty damned inconvenient for a company racing to complete something called the X-47B, “also known as as the Unmanned Combat Air System Demonstrator (UCAS-D),” according to the breathless prose of the tech site CNet this past month. The X-47B, CNet continues, “has put a gleam in the Pentagon’s eye about someday equipping carrier strike forces with autonomous aircraft.”

That would be very sort of aircraft that Lawfare/TNR says don’t need no stinking regulation.

This is getting tiresome, but I guess I have to repeat myself: Again, Lawfare and TNR both separately disclosed the sponsorship. Readers were put on notice that there was a sponsor. They could judge for themselves whether or not they could trust the writing coming from the joint project. And I’ll repeat another thing as well: If Perlstein doesn’t like corporate sponsors and advertisers, why does he write for the Nation, which runs ads on its own site? Here is the Nation’s advertising policy. It states that “we reserve (and exercise) the right to attack [advertisers] in our editorial columns.” It further states that advertising is accepted “not to further the views of The Nation but to help pay the costs of publishing. We start, therefore, with the presumption that we will accept advertising even if the views expressed are repugnant to those of the editors.” If the Nation can accept advertising in order to pay the costs of publishing, and if it can assure readers that it will attack advertisers in editorial columns while taking their money, then I see no reason why Lawfare, TNR or Security States cannot disclose and take sponsorship.

More blather from Perlstein like the excerpt immediately above (and other excerpts above that) can be responded to with the paragraph immediately above, so let me skip down to the following. As you read it, bear in mind that it takes us twenty-six paragraphs before we get to it:

At this point, let me cop to it. It was wrong of me to write piece entitled, “Why Is The New Republic Taking Money From an NSA Contractor to Run Defenses of the NSA?” That was unfair. Much more accurate would have been to write, “Did The New Republic Take Money From a Drone Manufacturer that Wanted It To Run Defenses of Drones?”

About effing time that we get Perlstein to “cop” to an error. He could and should have “copped” to other errors, listed above. We also get the following:

The timing was certainly auspicious: last autumn was precisely when Northrop Grumman would want Lawfare’s small but influential band of readers to be thinking warm thoughts about its drone program—especially the ones on Congressional staffs. Another of their unmanned planes, the Global Hawk, was slated by the Pentagon for termination in January of 2012. According to an AllGov.com report, “The Air Force determined that Global Hawk cost too much and was too limited in its ability to fly during stormy weather, among other reasons for killing the drone.” (Originally budgeted at $35 million each, each plane will now cost an estimated $220 million.) Then Northrop “made it rain on Congress to the tune of $31 million in lobbying spending since the beginning of 2012, and in return Congress has passed legislation ordering the Air Force to purchase the arms maker’s RQ-4 Global Hawk.”

There is no evidence here of causation here, or collusion—just the appearance of impropriety. But Wittes doesn’t believe in the appearance of impropriety, does he? “I sincerely wish we did and look forward to working with them (or other companies) in the future.” What kind of serious scholar says that???

Yawn. There isn’t even the appearance of impropriety here. There is no evidence that anything Northrop Grumman did affected the writing done by Security States, or by Lawfare or TNR in their separate capacities. By now, it should be clear to even the most addled that Perlstein has been wasting the time of his readers.

I would discuss the rest of Perlstein’s piece, but mine is reaching 3800 words, and frankly, I’m bored. Perlstein goes on to allege that the NSA likes doing podcasts with Lawfare (who cares?), he says that he accepts Jack Goldsmith’s statement that Goldsmith has not been paid for any of his posts at Lawfare, while still trying desperately to claim that there is something wrong with accepting a sponsorship that was (I have to repeat this again) fully disclosed, and he reveals that Benjamin Wittes is advertised to on the Internet by defense contractors, “[w]hich I guess in the end sort of proves my point” (it really doesn’t, because as is abundantly clear, Perlstein has no point). So much for the “worse” that we were promised way back at the beginning of this post; the only “worse” that we have learned is that Rick Perlstein can’t think his way out of a wet paper bag, and he has no journalistic integrity to speak of.

DISCLOSURE: I have cited and written favorably about Lawfare in the past. I have also had one of my essays called “thoughtful” by Jack Goldsmith, and I have guest-posted for Lawfare as well. I have not been paid a penny for any of these writings by Northrop Grumman, the Nation, Lawfare, the Lawfare Institute, TNR, George Soros, the Koch brothers, or any other person, non-profit, corporation, small business, church, synagogue, mosque, interplanetary federation or other entity whatsoever. Additionally, Rick Perlstein and I are fellow alums of the University of Chicago, a fact that I am rather ashamed to disclose, because it means that I am associated with Perlstein in some small way.

UPDATE: As it turns out, the very WayBack web archive that Perlstein cites indicates quite clearly that Northrop Grumman’s advertisement appeared on the Security States website. So we have yet more evidence that Perlstein is incapable of performing competent research. Either that, or Perlstein knew that the Northrop Grumman advertisement appeared on Security States and could be found via the WayBack archives, but chose to hide this fact from his readers.

One Reply to “Why Is Rick Perlstein Sliming Lawfare?”

  1. I thought I smelled the Koch Brothers behind this. Perhaps you’ve been downstream and been in contact with a product of theirs.

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