Recounting the WikiLeaks Experience, New York Times Lawyer McCraw ’92 Says: It’s in our DNA to Publish As vice president and assistant counsel for the New York Times Company, David McCraw ’92 said his first instinct as a First Amendment lawyer, buttressed by his bosses at one of the world’s most acclaimed news papers, is to publish hard-hitting articles despite the threat of litigation. At the Times, “All the News That’s Fit to Print” is more than a catchy motto. “At the end of the day, it’s in our DNA to publish,” McCraw said in response to a question posed by a student at the end of a provocative hour-long talk, “Law and Disorder: WikiLeaks and the Future of Information Freedom.” “One of the things we pride ourselves on at the New York Times is assisting reporters in getting stories in the paper,” he said. “We want to be using the law, pushing the law and making sure journalists can do as much as possible with their information.” McCraw has been a dogged defender of the Freedom of Information Law (FOIL) and represented the Times in more than a dozen FOIL lawsuits, including litigation challenging
“We want to be using the law, pushing the law and making sure journalists can do as much as possible with their information.” the Obama Administration’s refusal to reveal the legal basis for the 2011 drone strike in Yemen against an American citizen and New York City’s secret compilation of oral histories provided by the first responders after the 9/11 terrorist attacks. He has been invited to talk about FOIL
litigation in the Middle East, Hungary, China and Cameroon in West Africa. “These countries understand what it is like to be controlled by a government in secrecy,” he said. “The response in Cameroon was amazing. It was the first time I’ve been asked for my autograph. They certainly felt we’d done something to make the world better.” The focus of McCraw’s talk was his work in the saga of WikiLeaks, the controversial not-for-profit publishing organization that used the Internet to strike fear into the hearts of the most powerful and secretive government agencies by broadcasting their secrets. WikiLeaks approached the Times in June 2010 and offered to leak a range of secret documents to the newspaper. A cult of personality surrounded WikiLeaks’ shadowy and eccentric founder, Julian Assange, whom McCraw described as “this strange, Aspergerish guy.” There was further intrigue about the motivation of Pfc. Bradley Manning, the Army intelligence analyst who now faces trial for the release of confidential military and diplomatic documents. Several books and a documentary film, “We Steal Secrets,” are already out and a feature film on WikiLeaks is in the works. “For us, it wasn’t simply a matter of can you publish the WikiLeaks documents or not,” McCraw said. “There were a lot of issues that hadn’t occurred to us right away. The First Amendment is about publishing, but was there a difference between the right to publish and the right to possess them? And what about safeguarding the files internally? And how did WikiLeaks get the documents and would we be seen as
David McCraw ’92 speaking to a class aiding and abetting them if we published the documents? Also, what was our obligation to make sure the files in our possession were not compromised?” In the end, the Times thoroughly vetted the WikiLeaks documents and applied rigorous standards that showed a strong public interest while merely trivial or entertaining items were rejected. They also carefully redacted the names of government officials and others they thought might be harmed by public exposure. The Times took the unusual step of notifying the White House in advance of publication. In the end, out of more than 90,000 documents provided by WikiLeaks, the Times published only about 25. The internal State Department cables, which pulled back the curtain on U.S. foreign policy in often unflattering terms, caused the most consternation and received the most heated response. The newspaper did not get sued. “In the end, nothing happened as a result of publishing, but it didn’t feel like that on the way through it,” he said.
Spring 2013
McCraw, who is an adjunct professor at NYU School of Law, noted that his visit to Albany allowed him to get out of a motion hearing in New York that afternoon in a highprofile case to which he sent an associate. He said he received an email from the associate with an ambiguous update: “We lost and we sort of won.” McCraw quipped: “I knew I had trained him well to be a lawyer.” | P G McCraw visited Albany Law School on Jan. 17 as the Spring 2013 Alumnus in Residence. He spoke to students and faculty about his work handling Freedom of Information Law litigation and providing legal counsel to the newsrooms at the Times, The Boston Globe, The International Tribune and its other publications and websites. Now in its 20th year, the Alumnus in Residence program brings distinguished graduates back to campus to share their expertise and experiences as a way of showing the wide range and value of an Albany Law School degree.
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