Situational ethics at
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TWA Flight 800





"In the end-justifies-the-means environment I worked in," writes Jayson Blair, "I had grown accustomed to lying." As the reader recalls, Blair was the young New York Times writer who chose to imagine his stories rather than report them. As I document in my new book, Hoodwinked, the New York Times has a long history of such imaginings, often with tragic consequences.

Today, that end-justifies-the-means environment is on full display in the Judith Miller case. As all the world knows, Judith Miller has been dispatched to prison rather than to reveal her sources in the already tainted Joseph Wilson-Valerie Plame CIA disclosure case.

The Times' executive editor, Bill Keller, has called Miller's decision a "brave and principled choice," and it may very well be that. What is neither brave nor principled, however, is the Times' history on press freedom cases The "paper of record" tends to celebrate principled journalism and the protection of sources only when such principles advance its own agenda, as it clearly does in this story. Indeed, the less than credible Joseph Wilson became a media darling only because of his potential to embarrass the Bush administration, a potential that the media recklessly exploited.

Investigative reporter James Sanders, however, had the potential to embarrass the Clinton administration, and his fate shows just how fully situational is the New York Times' affection for journalistic ethics.

In the way of background, in March 1997 California's Riverside Press-Enterprise published a series of newspaper articles describing Sanders' research into the demise of TWA Flight 800 off the coast of Long Island in July 1996. "New Data Show Missile May Have Nailed TWA 800," screamed the one-inch, front-page headline.

The "new data" were test results of an orange residue found spread across the interior cabin of the plane. The results strongly suggested that the residue was the result of a missile blast. A high-level source inside the investigation, "Hangar Man," disgusted by what he perceived as an FBI cover-up, had provided Sanders with the tiny residue samples. The FBI had tested comparable samples months before and refused to share the results with the NTSB.

The Clinton Justice Department was worried. The spin control it had used to silence the media to this point might not work in the Sanders case. Justice suspected that he had additional residue scraped from the seatbacks of TWA Flight 800. As soon as its agents fixed onto an alternate explanation, he could produce a second or third sample for testing, possibly publicly.

Almost immediately, Justice Department officials zeroed in on what they sensed was Sanders' Achilles heel, his wife Elizabeth. The Justice Department found its rationale on page A-12 of the Press-Enterprise story where Elizabeth Sanders was mentioned by name. In fact, James Sanders had had no real choice but to mention her. Elizabeth was a TWA employee. She had referred him to Hangar Man. Disclosure was mandatory.

In April 1997, James Sanders and his attorney met with the Justice Department, represented by Valerie Caproni, chief of the New York Justice Department Criminal Division. Caproni – now chief counsel for the FBI – was the same attorney who muscled the NTSB out of the witness interviews in its first few days. Arguably, she was a participant in the subversion of the investigation, and here she was prosecuting those who would expose that subversion. At the meeting, Caproni laid down her nuclear option: Unless he gave up Hangar Man, the government would indict Elizabeth Sanders as well.

The Justice Department underestimated Elizabeth Sanders. Although confused and disheartened by the FBI's harassment of her, she advised the government though counsel that she declined to cooperate in its investigation of her husband's journalistic pursuits. Regardless of the cost, she could not even conceive of betraying his source and her friend, Hangar Man.

To escape her pursuers, Elizabeth Sanders had to take leave from TWA and avoid her home or anywhere else the FBI agents might find her. For eight unnerving months in 1997, she found refuge with a friend in a lonely house trailer in the Northwest semi-wilderness. She was cut off from her career, her co-workers, her mother and sisters, her husband and her adolescent son. The experience threw her into a profound depression.

Despite the Sanders' silence, the FBI seized Sanders' phone records and found their way to Hangar Man. Under pressure and with no media support, he pled guilty to a misdemeanor charge of stealing airplane parts from a crash scene.

Not content to punish the source, the Justice Department went after the Sanderses, charging them – and eventually convicting them – with conspiracy, aiding and abetting a source to obtain parts of an airplane, namely "residue." Their motive was transparently not to steal these parts, but to test evidence – evidence of potential federal lawlessness.

The major media, however, found it comfortable to report the Sanderses' transgression as theft. The New York Times would later note without a hint of irony or outrage that "the Sanderses were charged under a federal law enacted in 1996 after a truck driver in Florida was accused of taking a piece of the wreckage of the May 1996 Valujet crash as a souvenir."

In fact, the law had been enacted in the 1960s to discourage souvenir hunters. But the motive behind the act was, as described, to discourage scavengers. The Times also noted that the Sanderses' attorney "tried yesterday to portray the matter as a free press issue," but the very word "tried" suggests the Times' lack of sympathy.

Newsday's online headline cut right to the chase: "Missile theorist, wife and pilot accused of stealing." Through this selective misinformation, the FBI was turning the potential Long Island jury pool against the Sanderses.

It stunned the Sanderses that none among the media managed to frame even one First Amendment question. When the Sanderses' attorney attempted to bring this issue into focus, Newsday's Bob Kessler began to argue the government's case. Another reporter asked the attorney why his client did not immediately return the residue and turn Hangar Man in to the FBI. James Sanders shook his head in disbelief. Numerous media groups may have lined up behind Judith Miller, but the major press groups did not even acknowledged the Sanderses' existence.

A generation ago the New York Times made Daniel Ellsberg a hero by publishing the purloined and fully classified "Pentagon Papers." Today, it makes a hero out of Judith Miller. One only asks here for a little consistency before the back patting gets too noisy.


Posted: July 9, 2005
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