When Crisis Comes to the Newsroom

The Media Lawyer in a Time of Global Unrest

DAVID E. MCCRAW

[The Committee to Protect Journalists] annual report shows re­cord # of journalists imprisoned worldwide in 2017, including 21 on “fake news” charges.

—Senator John McCain, December 17, 2017

The long-term economic downturn in the US newspaper industry has blown a hole in international news coverage by American media.¹ Most large-city American newspapers have shuttered their foreign bureaus and retreated to their home bases, leaving the increasingly perilous business of covering the world from an American perspective to a handful of big players like the Associated Press, the Wall Street Journal, the Washington Post, and the New York Times, helped along by a few gritty and brave freelancers.² For those news organizations that remain in the world's hardest places, journalists have become softer targets for hostile regimes. It's just math: silencing one voice isn't much of a lift for governments used to locking down their own peo­ple whenever they dared to resist, especially if no one is there to witness it. Added to that toxic equation is the vulnerability of journalists, often working alone, to kidnapping by terrorist groups-a shocking reality driven home to the world in 2014, when journalists Jim Foley and Steve Sotloff were among the hostages beheaded by ISIS in Syria.³

That is the reality that those of us tasked with international security for news organizations face in a world where both our industry and the threats that our journalists encounter have undergone dramatic change. When I first became a lawyer for the New York Times in 2002, it was not uncommon for the detention of a journalist by a hostile government or combatants to be resolved before we could act.

Lawyering for a national news organization often involves duties that ex­tend beyond the metes and bounds of the law: dealing with irate readers un­happy with the day's news or their home delivery, helping editors sort through ethical quandaries, connecting reporters to sources in the legal profession who might be able to explain the law behind a news story. But when I be­came the New York Times’s de facto international crisis manager, I stepped into a role that went far beyond anything I had been trained for as a lawyer, but at the same time, and in significant ways, I drew on the core skills that a lawyer naturally brings to any task. As unprepared as I was to lead a response to a kidnapping, over time I came to understand that—though the stakes were life-and-death high—it had commonalities with so many other complex problems I had faced in my career. The situation required a mastery of the available information, an insistence on rationality despite the pull of emo­tional responses, a skeptical embrace of experts, and ultimately a willingness to make the hard decisions despite imperfect information and options that were never optimal.

That skill set was instrumental for me in leading the Times’s response in a range of international emergencies over the course of a decade, from the ar­rest of our local staff in Egypt to a helicopter accident that seriously injured one of our journalists in a remote part of Iraq.

A Kidnapping in Afghanistan

The fact that I found myself thrust into the role of response manager was more a matter of organizational fluke than corporate design. It began in Octo­ber 2008, when I received a call from one of our editors, letting me know that our reporter David Rohde had been kidnapped in Afghanistan during a reporting trip he had taken with two Afghan colleagues to interview a Taliban leader.⁴ After David missed a prearranged phone check-in, someone at our Kabul bureau had called his cell phone and learned that the three of them had been seized after driving into a trap set by the militant they were meeting.

Three years earlier, I had been assigned as the legal department's repre­sentative to a company committee charged with drafting a crisis plan to deal with emergencies overseas. Because of the nature of our business, the com­mittee's work largely focused on the perils of kidnappings and government detentions. It was natural that a lawyer would come to be the drafter of the document. Our department had oversight for many corporate policies, from record management to business ethics. Over several months, I collaborated with the committee and a consultant over a series of meetings and drafts. In the end, when we issued our plan, it was quickly tucked away in a drawer and pretty much forgotten. That, it turned out, was enough to put me in charge of managing our response to David's kidnapping three years later.

I had only the vaguest idea of what we were supposed to do. A group of editors and I sat in a conference room that first afternoon trying to find out what we could from Carlotta Gall, our bureau chief in Kabul.

I stepped out of the room and tracked down the number for the publisher's general counsel. When I got through, I explained how David Rohde was writ­ing a book for his company and how David had just been kidnapped by the Taliban. He agreed with me that it was a terrible situation. “I'm glad you're involved,” he said. “We wouldn't know what to do.”

For the next eight months, my life would be consumed by David's kidnap­ping. I would go to the FBI's New York operations center with our executive editor, Bill Keller, to watch hostage videos released by David's captors. I was on the phone or in meetings every day with David's wife, Kristen, and his brother, Lee, as we tried to figure out how to get David and his two Afghan colleagues home. Reporters at the Times with connections deep into the in­telligence services gave us information that was always interesting but could never be verified. I worked with two outside security consulting firms. One was the Times's regular consulting firm for crisis management. The other, in­troduced to us by a friend of David's relatives, was run by a former Green Beret who had as his top operations person a former CIA agent. The former agent had already been convicted of a felony; his boss would be convicted a few years later of defrauding the government on defense contracts. They came filled with promises of cowboy missions and deep-state intelligence. They conjured up one crazy scheme after another. They gave code names to people who they said were in Pakistan, where David was being held, and who were providing them with firsthand information on David's captors. They came up with mind-boggling plans to bribe Taliban guards, have them overpower the others, and spirit David and the two Afghans off in the night—going where and how...

At one point, Kristen, Lee, and I were summoned on a Sunday afternoon to a New York hotel lobby to meet with a guy who claimed to work under­cover for the CIA and was willing to go into Pakistan and bring David out. We sat in an isolated corner as he whispered about his plans and swept his eyes around the nearly empty room. We had no idea what was real and what was phony, what would work and what wouldn't.

It didn't help that the US government was mostly an enigma to us. The FBI is the lead agency when an American gets kidnapped—even in distant war zone-like Afghanistan, where the CIA, the US military, and the State Depart­ment know far more about what is going on and seem not very interested in sharing with others, particularly out-of-their-depth FBI agents. The agents would lecture us on the illegality of paying ransoms, and then an agent would call me later and tell me that I shouldn't be an idiot: these things got solved by money more often than not. Every so often, I would get invited down to the FBI operations center in the Chelsea neighborhood of Manhattan so agents could complain that I wasn't sharing information, and then I could complain that they weren't telling me and David's family anything, and then we would talk about sports. The FBI was unhappy that we had our own private security team working on the kidnapping, no matter how bungling that team might have been, no matter how little we actually knew about what the security con­sultants were doing, and no matter how sketchy they were. At times, individ­ual FBI agents and US officials went out of their way to be helpful, reaching out directly to Kristen and David's family and meeting with them in Washing­ton. Others put on their game faces, revealing nothing and—I suspected after a while—knowing nothing. There would be very occasional contact from the kidnappers, always seeking money or the release of detainees. At one point, David was able to make a call to his wife.

As a media organization, the Times faced problems unique to those in our industry. In the normal course of events, we would be covering an event like the kidnapping of a prominent journalist who worked at a prominent news organization. Our reporters would be determined to find out what was hap­pening and writing about it for the world. But the Times managed to keep the Rohde kidnapping out of the press. It was a controversial decision, one of those things that cut hard against our DNA as a news organization.⁵ Most kidnapping experts tell companies and families that they are better off not having the kidnapping in the papers. Little good can come from publicity. Worrying about what is going to be said and whether it could provoke the kidnappers to harm the victim or make more absurd demands is one more stressor in a situation that is minute-by-minute, day in, day out, a slow burn of tension. When so little is under your control, it makes no sense to bring on one more out-of-control factor. At the request of David's family, Keller and our corporate public relations people asked other news outlets to stand down and not report what they knew about the kidnapping. It was awkward—we were in the business of disclosing information, not hiding it—but lives were at stake, and we extended the same consideration to others who were kidnapped when we were asked. At one point during the kidnapping saga, Al Jazeera ob­tained a staged video clip of David marching through the mountains with his captors and put it on the air. Keller got on the phone to Al Jazeera editors and was able to get them to pull the piece. It was never broadcast again.

A Hybrid Role for a Lawyer

As days turned into weeks and David and his two Afghan colleagues remained hostages, little that I was doing had the look or feel of traditional lawyer­ing. To be sure, there were, from time to time, straightforward legal issues to address. When the issue of paying a ransom came up after the kidnappers demanded millions of dollars, I did a deep dive into the law surrounding material aid to terrorists, looking not only at what the law said but also the practical considerations of whether the US government would really pros­ecute a family or American company for securing the release of a victim of terrorism.⁶ There were other legal questions as well, most of them centered on employment law: where and how to pay David's salary, questions about his benefits, nagging issues about insurance policies.

But the hybrid role I had assumed—both legal adviser and operational manager—called on me to use lawyering skills in nontraditional ways. It is easy to frame a kidnapping as the antithesis of legal work. It is, by definition and by nature, lawless. Lawyers naturally gravitate to process, to documenta­tion, to information-gathering, to the order imposed by templates and prec­edents. And, in fact, as any security consultant will advise, those very things matter in the chaos of an international crisis. In an event in which so much is beyond the control of the company and the family seeking to resolve the situation, it becomes critical to keep careful, day-by-day records of what hap­pened and what was discussed: to establish a regular pattern of check-ins with the company and family stakeholders, to be persistent in the collection and organization of information, and to maintain a process for continual outreach to those in government and elsewhere who may be able to assist. Of course, while the chaos of the situation may demand such orderliness, that same chaos makes it difficult. Those involved invariably want real-time updates, not scheduled twice-a-day calls, and the need to document regularly gets shunted aside by the demands of the moment. But crisis management ultimately tests a different skill set: one's ability to operate as a creative problem-solver while working on a problem that has no ready or apparent solution. An interna­tional crisis is an overarching problem to be solved, but in the unfolding of the response there is a continual series of smaller, more discrete problems that need to be addressed—from the determination of how and where to ob­tain information and the implementation of communication strategies to the management of difficult relationships in times of unrelenting stress.

Lawyers may or may not feel suited to take on a leadership in all of that. Some do better, and play a more productive role, by advising the people in the operational roles, providing needed legal advice, calibrating liability, and staying mindful of any possible litigation that may lurk down the road when the event is over. I found the opposite to be true. The practice of law is, at base, an engagement in problem-solving and I have always seen it as such and been willing to embrace creativity, looking for solutions that sometime involve business as much as the law, diplomacy as much as advocacy.

So even though no one in the company thought of the kidnapping as a “legal matter” properly managed out of an in-house legal department, se­nior management did recognize that I came at my job in a way that could translate well into being the right person to oversee our response to the kid­napping. Overwhelmingly, crisis management centers on tasks that track the work of many lawyers: making strategic decisions about and implementing a response, supervising consultants, overseeing the collection of intelligence, being a liaison with the government, and—most critically—managing com­munications internally and externally and with his family.

It helped that I understood journalism and newsrooms. News organiza­tions are not like other companies. In the years since David's kidnapping, I have sat through too many pitches from security firms that specialize in providing protection to American workers abroad, as they tried to impress me by how quickly they had moved their clients out of countries that had imploded with public unrest or terrorist attacks or the onset of war. I had little interest in any of that. I needed to know how good they were at keep­ing safe the people who planned to stay behind and run toward the fire. We were a news organization, not an oil company. We were in the world to be a witness to its troubles. Neither were our employees satisfied to passively go about their work, leaving the kidnap response to others. They were reporters, with incredible sources in the Pentagon, at the CIA, and elsewhere in the US government. They could get top foreign officials to come to the phone. They were professionally ordained to find out information and share it. Journalists inside a news organization may compete ruthlessly, fall prey to intra-office jealously, and whisper about the failings of others in their newsrooms, but when crisis comes, they are like Marines—personally invested in saving who­ever has wandered into harm's way. There is no need-to-know ethos in a news organization; there is a working premise, for better or worse, that everyone needs to know everything and needs to know right away. That reality compli­cates crisis management for any news organization.

There was more to recommend having me take on operational duties. As the lead lawyer for the Times newsroom, I comfortably straddled the bifur­cated world of a news organization, with its inevitable wall between the cor­porate and business offices on one side and its independent news operation on the other. I knew where to go on the corporate floors to get resources, and I had the hard-won trust of the journalists, who knew I was going to do what was right by David and not be a corporate-side functionary, cautiously cleaving to some company line. (In fact, our CEO, our publisher, and our entire business staff were endlessly supportive of me and of David's family, no matter what lingering and long-held suspicions may have colored newsroom sentiments.) Still, it took a long time, and several miscues, for me to realize the importance of keeping things confidential within a tight group of em­ployees, of being strategic about the information that was going to be shared with employees, and of limiting the circle of decision makers who would play a role in managing the crisis. When information flows too freely in a crisis, false hope, false despair, and consuming distraction invariably follow. People act on those things, and the result is rarely good for them or for the crisis management team. It becomes its own problem, one more thing to manage in a situation that needs no further complications.

The single-most fraught issue in any kidnapping is the decision whether to pay a ransom, and there, undeniably, the law infuses the decision-making. Most obviously, a kidnapping for money becomes a form of extortion, and the family or company forced to pay is a crime victim. That is a fairly straight­forward legal scenario when a kidnapping is done by criminals just seeking cash. But terrorism kidnappings are different. The US government at the time took the position that payments of ransom in terrorism cases were illegal, a form of material aid to terrorists.⁷ The FBI agents advising us when calls came in from the kidnappers told us that they could not be part of any offer of a ransom—unless it was a scheme to lure the kidnappers out of hiding. Only later, thanks to the advocacy of Jim Foley's family and others after his death, did the government modify its position and publicly declare in 2015 that American families would not be prosecuted for paying ransoms.⁸ The prohibition remains for corporations and non-family members.⁹

We were fortunate that we as a company never had to face the question of whether we would pay a ransom. (We made offers in the sporadic calls with the kidnappers to keep the lines of communication open but were never close to the amounts they were demanding.) Any discussion of ransom, legal con­cerns aside, is fraught. As close as a company may be to the family of a kidnap victim, as much as the parties are working in sync for a common goal, there is a simple hard truth at the center of the discussions: the family's interests and the company's interest are not necessarily aligned. The family has a single­minded goal: the safe return of a loved one. A company must look at a range of interests—some legal considerations, some business matters: whether a ransom payment will create an incentive for kidnappings of other employees going forward, what reputational harm could flow from paying terrorists, and what obligations the company has to its shareholders and its board.

Neither a company lawyer nor a crisis response manager was going to be in a position to make those hard calls for a corporation. It was a decision that had to be made by the most senior people in an organization. My ability to advise my corporate client on the legalities of ransom would always be useful but could never answer the actual question: Should we do it? We never got to that hard place in David's case.

The End of a Kidnapping, the Beginning of a Second

The Rohde kidnapping ended as abruptly as it had begun. For months we had spent hours upon hours turning over and over again what we could do to try to bring the kidnapping to an end, who might be able to intervene, what connections we could try to make to the kidnappers. Then, on a sum­mer Friday evening in June 2009, eight months in, I was in a car heading to a dinner party when David's wife, Kristen, called my cell phone. David had just called home. “He's escaped and he needs help,” she said. David and Tahir, his Afghan colleague, had gotten away by crawling down a rope and made their way through the town of Miranshah to a nearby Pakistani military garrison. They had convinced the Pakistani military officer in charge to let them in (after the sentries made sure they were not rigged with suicide vests)—but it didn't mean they were safe. In the lawless tribal areas of northern Pakistan, where the Taliban held sway and the Pakistani government maintained only a nominal presence, there was no guarantee that they wouldn't be handed back to their captors.

I called our security consultants. No one knew anything about the escape, and after months of bravado and wild plans, they had no ideas about what we should do in the much-too-real situation that was unfolding before me. Susan Chira, our foreign editor, was supposed to be hosting the dinner. She and I had stopped outside her building, the two of us on the sidewalk, mak­ing calls to Times people in Pakistan and Afghanistan and anyone else who might be able to help. We agreed that we needed to join Kristen at her apart­ment downtown. Susan and I dashed past her arriving guests and flagged down a cab. In the car, I called the US embassy in Kabul, talked my way past the switchboard, and finally got through to an official there. It was not yet daybreak on the other side of the world. I explained everything I knew so far, which wasn't much. I could hear the embassy official taking notes. He asked me for some basic information. And then he said: “Be assured, Mr. McCraw, we will do nothing to stand in the way of your operation.” I was in a cab on the West Side of New York City. I was a media lawyer who had once written a corporate crisis management plan. I was trying to get two kidnap victims out of the tribal areas of northern Pakistan. This guy on the phone was, as far as I was concerned, the US government. “I don't have an operation,” I said. “I need you to have an operation.” He went off to find an operation, never to be heard from again.

We worked through the night calling everyone Kristen, Lee, and I knew in President Barack Obama's administration, asking for assistance. The call­ing was frantic, and it got to the point that someone at the Pentagon finally told Lee we needed to shut it down, because everybody was spending valu­able minutes answering phone calls from the officials we had called rather than doing something useful to get David out. The plan, as it evolved over the early-morning hours, was to have a Pakistani military helicopter fly into Miranshah, pick up David and Tahir, and transport him to Islamabad, the Pakistani capital. The next morning, after spending most of the night on the phone, I received word that David and Tahir had made it to Islamabad, then been taken to Bagram Air Base in Afghanistan before David would return to America.¹⁰

Three months after David returned, I received a call on a Saturday morn­ing outside a suburban grocery store. The Times reporter Stephen Farrell and Sultan Munadi, an Afghan journalist who also worked for the paper, had been taken by the Taliban in Afghanistan. It started all over again: making the diffi­cult calls to family members, connecting with the right people in government, collecting whatever information we could about the reporting trip they had been on, seeking out advice from the consultants (although we were done with cowboys). Four days later, British paratroopers staged a night raid on the house where they were being held.¹¹ Steve was rescued. Sultan was killed in the battle, as was a British soldier, Corporal John Harrison?² In David's case, the American government had told David's family that it would advise them if a military raid was being considered. Steve's kidnapping was different. It was being handled by the UK government because he was a British citizen. The first time I knew of the military operation was when my contact at the British Foreign and Commonwealth Office called me as the helicopters were bringing Steve back to Kabul.

Neither kidnapping really ended with the return of the reporters to safety. In both instances, we were swept up in public controversies that served as pointed reminders of how crisis management has to outlive the crisis itself. In Steve Farrell's case, Afghan journalists quickly came to believe that the rescu­ers had purposely gone for the Caucasian Westerner but had no regard for the Afghans, whether they were the captors or Sultan?³ In the United Kingdom, the British newspapers loudly proclaimed that a brave English soldier had died rescuing reckless journalists who had put themselves in harm's way?⁴ The killing of Sultan was a tragedy, one deeply felt by those at the Times who knew him, but there was no evidence to suggest that his death was anything more than a grave tragedy in the heat of a firefight?⁵ In the United Kingdom, the Times contributed to a fund established in honor of the fallen soldier and joined in recognizing the sacrifice he had made. Those decisions were easy. The harder decision was to avoid getting into a heated debate with British newspapers over the conduct of our reporting team. We had points we could make—and, despite the tragic death of the soldier, it was still unbecoming to blame the victims of a kidnapping—but little good would come from keeping the story alive.

The aftermath of the Rohde kidnapping was more complicated. People inside the US government started passing rumors, to reporters and others, that we had paid a ransom?⁶ We hadn't. If someone else paid—the Saudis, the Pakistani intelligence service, the US government, persons unknown—we never knew about it, and the idea seemed particularly preposterous based on what was verifiable and known. David and Tahir showed up at a military garrison unannounced and had to plead to be let inside?⁷ There was no plan in place to get them out of the Pakistan tribal areas and to safety, not until David's family and I prompted the US government to do something after Kristen's call to me in the car. None of that would make sense if someone had arranged for the release. It would be irrational and illogical for anyone to leave such critical loose ends. Ransom-payers don't want to have to pay twice. Over time, I heard the story of the escape—daring and without assistance—often enough from David and Tahir that I had no doubts it was true. Yet, nearly a decade after the kidnapping, I continued to field questions about “what re­ally happened.” Behind many of the inquiries was the not very veiled hope of some reporters and others to show that the New York Times had engaged in a cover-up and propagated a lie in covering the kidnapping in its pages.

It was a difficult position for me as a lawyer. The natural urge was to be an advocate and to lay out the facts and make our case. But there was no obvi­ous forum. At one point, I invited two FBI agents to our offices to go over our financial books documenting the transfer of funds to and from Kabul over the relevant period. The FBI had heard that the alleged ransom was paid from our bank account in Afghanistan. The ledgers showed that there had been no unexplained disbursements, and the agents appeared convinced. But I knew through contacts (specifically contacts that David Rohde had) that the report of the ransom had circulated far beyond the FBI and into the intelligence community and State Department. David made his own personal missions to various officials to challenge the report, but the story of the ransom persisted. I did what I could at first. I phoned an ambassador who appeared to be one of the people spreading the story and had a difficult conversation. Occasionally stories would pop up on the internet, and we would respond, but the coun­ternarrative persisted, no matter where the truth was.

As difficult as it was to navigate the post-kidnapping communication chal­lenges, in the long view the experience was instructive for those of us who are typically on the receiving end of complaints about coverage. In the regular course of my work, I deal often with those incensed with Times articles. Even when the criticism is misguided and wrong, I think back to my experience of being on the other side, of the white heat of negative publicity, of how re­porting can at times go off track, and of how important it is to make sure our reporters have their stories right.

Four Journalists Go Missing in Libya

After the incident with Steve and Sultan, we had no more kidnappings, but other crises kept coming. Anthony Shadid died while on a reporting trip inside Syria, Alissa Rubin was seriously injured in a helicopter crash on Mount Sinjar in Iraq, a freelancer was detained in Ethiopia, two other freelancers were jailed while reporting from the Sinai Peninsula, one of our stringers in the Democratic Republic of Congo had to be relocated to Kenya, and we were in a more-or-less constant showdown with the authorities in Turkey as the Erdogan government took a hard turn toward authoritarianism. The hard, dark turn of the Turkish government was particularly troubling. When four of our journalists disappeared in Libya during the war there in 2011, it was the Turkish embassy in Syria we turned to for help.¹⁸ The US diplomatic corps had left the country, but the Turks had stayed and were instrumental in get­ting our people back home. They stood up for the journalists and for human rights in a way that now seems almost impossible to fathom.

The four—Tyler Hicks, Anthony Shadid, Lindsay Addario, and Steve Farrell—had vanished one afternoon, along with their driver Mohammed Shaglouf, as they covered the war from the rebels' side. About the only useful bit of information we had in the first hours was that they had been carrying a satellite phone. And we knew that for as long as the phone was on, it would be transmitting their geographical location—the longitude and latitude of where they were. It would be a critical clue to finding them. There was just one problem: the satellite phone company wouldn't give us the data from the phone. Our tech people kept calling; the phone company kept refusing. The most important lesson I had learned from dealing with foreign crises was to be persistent, to keep trying, anything and everything, no matter how hope­less. The company was headquartered in the Middle East, and I finally got a senior executive to come to the phone. It was early in the morning in New York and I sat in my office, alone on my floor, making the plea. I explained that we needed the geographic coordinates, that it was a matter of life and death. The executive was warm and courteous, courtly almost, but nothing I said could move him. He said it was illegal to give me the information. But it was our data, I protested. No, he said, that was wrong. The data did not belong to the Times, and it did not belong to his company. It belonged to the land that was Libya, to the planet earth. It was nonsensical, utterly stupid, and so around and around we went. There was no resort to legal principles or legal advocacy. That would have been futile. In the end, he gave up the location of the last transmission—an incredibly useful bit of evidence—but surrendered it only after my persistent appeal for a humanitarian response to my request.

We learned over the next day that the journalists had been rounded up during a fight between the rebels and Qadaffi's military at a checkpoint. In New York, my small team was working sixteen hours a day trying to get them freed, knowing that the United States and its allies were about to start bomb­ing Qadaffi's strongholds and everything would be more complicated when that happened. Reporter Chris Chivers left his home in Rhode Island and showed up to assist. We were joined by one of our outside security consul­tants. The three of us sat hour after hour in my office brainstorming on how we could reach the Qadaffi government. Every morning and afternoon, I gave regularly scheduled updates to the four families. We sorted through Twitter trying to figure out which way the war was going. Four days into the cri­sis I learned of two people in New York who knew Qadaffi personally. I got them to the phone and persuaded them to call the Libyan leader even as the bombing of Tripoli started. I cajoled and pressed my contact in the State De­partment to do more to help us get to the right people in the Libyan govern­ment. We learned that our journalists had been mistreated, and we needed the US government to do more, faster. In the strange way these things unfold, I ended up one afternoon on the phone with a Libyan government official, who was in the same room with not only the four Times journalists being held but also David Kirkpatrick, who was covering the war for us from Tripoli and had been permitted to come see them.

Five days into the standoff, the Libyans finally committed to handing over the four to Turkish diplomats. A time was set, arrangements were made, and the Turks began traveling through the dark streets of Tripoli to the pickup point. And then the bombing resumed. The Libyans said the transfer could not go forward. It was late at night in New York. Chivers and I closed down my office and came dragging back in at four in the morning, when the Turks were to try again. Shortly after dawn, we got the news that the ordeal was over.¹⁹ Our journalists had been handed over. The Turks had come through. They escorted the four to the Tunisian border and freedom.

There remained one task undone. Mohammed Shaglouf, the driver, had disappeared after the car was stopped at the checkpoint. He had worked for the Times for exactly one day, hired that morning to take the Times journal­ists to report on a hospital in a village near the front. Prodded by Chivers, a former Marine, I knew we had to help his family as they tried to find out what had happened to him. By then, Libya was attempting to pick up the pieces after the fall of Qaddafi and the rebels' victory. Mohammed's family had tried to sort through rumors and hazy reports of his whereabouts. Someone re­called hearing his name called out at a Qaddafi detention facility. That proved to be untrue. In fact, he had been shot and died at the checkpoint.

Not far from where Mohammed had died, a Libyan man had created a carefully tended cemetery of unmarked graves for those whose bodies had been left behind in battle. He had taken pictures of the interred in the hopes that, later, families might be able to identify their loved ones. Shane Bell, one of our in-country security advisers, volunteered to travel into the heart of Libya to get DNA samples from Mohammed's family and from a body that appeared to be his. I set about trying to find a lab anywhere in the Middle East that could do the DNA testing quickly. I got nowhere. Shane was due to take home leave, so he packed the samples in his suitcase and carried them half­way around the world to Australia, where he found a lab that did DNA work. The samples were not in good shape, and the lab told me it would be hard to do a proper analysis, but the technicians there finally managed to pull it off. They sent me the results. There was no chance that the body in the unmarked grave was Mohammed.

I carefully typed up an email to the Shaglouf family, hoping to cushion what I knew would be the harsh blow of learning that they had not found their son and brother. They had studied pictures of the corpse and were con­vinced that the DNA would confirm the identity. I expressed my regrets as best I could. I am sure I did not achieve the closure I was hoping for. Nothing in my legal training had prepared me for delivering that sort of heartbreaking message to a family in grief.

Our dealings with the Shaglouf family underscored once again that for those of us charged with managing a company's crisis response the work ex­tends beyond the resolution of the immediate crisis. Others inside and out­side the company will move on—and probably should. But for a company that cares about its standing in the world, as the New York Times does, these events may have long tails, and the need to do the right thing, as best we can, remains.

A World of Trouble

After the two kidnappings and the Libyan detention, I became converted to the most obvious of causes: preventing crises abroad. By 2014, when the world was horrified by ISIS's brutal executions of journalists Jim Foley and Steve Sotloff (along with two aid workers), we had resolved as a company to do better in protecting the safety of our journalists. The age of the swashbuck­ling foreign correspondent who drank hard, smoked to an excess, and moved about the world with reckless abandon to track down the story as the bombs fell and the bullets flew was over (if it ever existed at all). New security pro­tocols were put in place, requiring journalists heading for dangerous places to provide us with copies of passports, basic information about their families, and a security memo to be signed off on by our in-house security adviser. Scheduled phone check-ins became commonplace. Reporters at times trav­eled with security advisers. We occasionally pulled people out of countries when the personal risk became unacceptable.

Inevitably in legal circles, the discussion of such protocols gets framed as meeting a duty of care.²⁰ We are confident we are meeting that standard, but we rarely frame our conversations in-house that way. It suggests an ap­proach aimed at meeting some minimal standard, with an eye trained on the law rather than the safety and well-being of our people. We want those of us charged with looking out for reporters' safety—as well as the reporters themselves—to understand our first commitment is not avoiding a lawsuit but rather doing what we can to ensure the security of journalists reporting from the world's toughest places before an incident occurs.

This has made the dangerous rhetoric coming out of the White House since the presidential inauguration in 2017 all the more disturbing.

Throughout the course of the kidnappings and the detentions and the ran­dom mayhem our reporters encountered, I didn't always love the way we were treated by our government, but that was usually in the details—disagreements about what could be done reasonably and what could not. My experience had been that somebody in the US government would come to the phone when an American reporter was in trouble. Whatever unhappiness an administration may have had with our coverage, it got set aside. I also knew that as part of the core American diplomatic mission, under George W. Bush and under Barack Obama, the foreign service made a point to advocate for a freer press in coun­tries struggling to find democracy. The Bush State Department, no fan of the Times, had sent me to speak in Jordan, Yemen, Kuwait, Bahrain, and various countries of the old Soviet bloc about how press freedom worked in the United States. It was part of spreading the secular American gospel of freedom.

The first time we had a problem in the Middle East while Donald Trump was in the White House, someone in the State Department called one of our editors. He wasn't authorized to speak but needed to tell us about a threat that was looming for one of our reporters who had offended the local government. The official had made the call on his own, because he wasn't convinced that in the new State Department we would be able to count on anyone at the local embassies to help us out. I was told by people at other news organizations with reporters in trouble that the Trump State Department had continued to be help­ful, but I was not looking forward to finding out for myself the first time we really needed the backing of the US government in the midst of a crisis.

Then there was the president's obsessive denouncement of the US main­stream media as “fake news.”²¹ It was corrosive inside our borders. Beyond them, it was dangerous. The calculus for the world's worst autocrats was sim­ple: if the American president could denounce independent news organiza­tions in his country as enemies of the people and work to undermine a free press, there was no reason they should not deal with their own local journal­ists in exactly the same way. By the second year of the Trump administration, autocratic nations like Malaysia were enacting laws banning fake news, barely hiding what was really going on: there would now be another tool available for authoritarians to control the media and keep unpleasant truths from their people. The situation was also bleak for those American news organizations that happened to be working in repressive nations. When autocrats harassed or brought charges against American news organizations over stories that displeased a regime, they undoubtedly assumed they were ingratiating them­selves with the government in Washington.

Steve Erlanger of the Times reported on how infectious the president's “fake news” diatribe had been among the world's worst leaders.²² Syrian pres­ident Bashar al-Assad responding to reports of human rights abuses, said: “We are living in a fake-news era."2³ President Nicolas Maduro of Venezuela echoed his sentiments?⁴ In Myanmar, where the government turned a blind eye to the military's savage killing of Rohingya Muslims, an official said it was all fake news?⁵ Others joined the chorus in Poland, in Hungary, in Libya, in Russia, and in Somalia. Steve offered a chilling example from the People’s Daily, the government propaganda organ of China, which wrote:

If the president of the United States claims that his nation’s leading media out­lets are a stain on America, then negative news about China and other countries should be taken with a grain of salt, since it is likely that bias and political agen­das are distorting the real picture.²⁶

America had often held itself as a model when it was out promoting democ­racy to the world. The authoritarians of the world didn't seem much interested in following our lead in those days. But now? They were suddenly eager to sign on to be like this new America.

In July 2018, New York Times publisher A. G. Sulzberger met with Presi­dent Trump and discussed how denouncements of a free press were putting foreign correspondents at risk?⁷ It appears the message did not get through. In his own tweet about the meeting, the president launched another broad­side about fake news?⁸ Soon after, he was back out on the rally circuit, issuing toxic sound bites about the dishonesty of the press, scolding reporters for dar­ing to write critical articles, and portraying the American media as “enemies of the people.’^⁹

None of that fits neatly into the classic paradigm of a corporate crisis. But ironically, and sadly, it marries my dual roles at the Times: as a First Amend­ment lawyer, and as an executive responsible for the safety of our journalists. Wearing either hat, I see it as a crisis, or at least as a crisis in the making. Speaking out for press freedom may be the one crisis-management duty I am most qualified to perform after all these years as a First Amendment lawyer. And little seems more important at this juncture.

Lessons Learned

For those who end up two-hatted in times of crises—both lawyer and response manager—there can be an obvious tension at times. It is hardly surprising that the people directly involved in a crisis—the employees and their families—may wonder where our loyalties lie. Is a decision being made to protect the com­pany's reputation and legal interests or the best interests of our employees in trouble? And how does a lawyer walk that line when what may be best for the employee may run counter to the interests of the company?

There are no easy answers to those kinds of questions, and fortunately they tend to be raised more in the abstract than in the actual unfolding of a crisis. It seems inevitable, however, that in a complex and drawn-out crisis in which possible legal conflicts emerged between an employee's family and the com­pany, someone in my position would need to surrender the legal portfolio and take independent advice from another lawyer while continuing to be the day-to-day operator on crisis response. I have been fortunate to work for a company that has an unwavering commitment to putting the employee who is in crisis first. The Times has never been content to use the duty of care as the full measure of the response to be given. That has permitted me to focus not on meeting minimal legal standards but on the things that matter in resolving a crisis: clear and orderly communication inside and outside the company, strategic thinking, persistence in problem-solving, relentlessness in collecting and exploiting the available information, and forming alliances with those people and entities most likely to be of assistance. In crises, just as in litigation, much of what happens, good or bad, is beyond our control. And that immovable fact is what makes it all the more imperative to do what we can to be fully in control of the rest.

NOTES

This article is adapted from the book truth in our times: inside the fight FOR PRESS FREEDOM IN THE AGE OF ALTERNATIVE FACTS (2019).

1 For data on overall financial trends in the newspaper industry, see Michael Barthel, Despite Subscription Surges for Largest U.S. Newspapers, Circulation and Revenue Fall for Industry Overall, Pew Research Center (June 1, 2017), www.pewresearch.org. For data on the decline in foreign reporting, see Simon Kruse Rasmussen, Is Anybody Out There? Crisis and Collaboration in Foreign Reporting, Reuters Institute Fellowship Paper, University of Oxford (2012), https://reutersinstitute.politics.ox.ac.uk.

2 Research shows that, in the period 1998 to 2011, twenty or more U.S. news outlets closed all their overseas bureaus. Anupe Kaphle, The Foreign Desk in Transition, Colum. Journalism Rev. (Mar./Apr. 2015), www.cjr.org. At organizations that were maintaining an international presence, the numbers of countries covered, and staff employed, were also in decline. Id.

3 See generally Lawrence Wright, Five Hostages, The New Yorker (July 6 & 13, 2015), www.newyorker.com.

4 For a full account of the Rohde kidnapping, see David S. Rohde & Kristen Mulvihill, A Rope and a Prayer: The Story of a Kidnapping (2010).

5 See Dan Murphy, Rohde: Media Faces Tough Choices in Kidnap Cases, Christian Science Monitor (June 20, 2009), www.csmonitor.com; Howard Kurtz, Media Agreed to Stay Silent on Kidnapping of Reporter David Rohde, Wash. Post (June 29, 2009), www.washingtonpost.com; Kelly McBride, Journalists Can’t Uphold Standard Set by News Blackout of Rohde Kidnapping, Poynter Institute (June 23, 2009), www.poynter.org.; Joel Simon, Is It Time to End Media Blackouts?, Colum. Journalism Rev. (Sept. 3, 2014), https:// archives.cjr.org.

6 While there are no known prosecution of Americans for payment of ransom to terrorists, asylum-seekers have faced legal obstacles when U.S. authorities have treated ransom payments made in their home countries as material aid. See Steven H. Schulman, Asylum Seekers and the Material-Support Bar, 59 Cath. Univ. L. Rev. 949 (2010).

7 Julie Hirschfeld Davis, Obama Ordering Change in U.S. Hostage Policies, N.Y. Times (June 23, 2015), www.nytimes.com; Julie Pace & Eric Tucker, US Will No Longer Prosecute Hostages’ Families for Paying Ransom to Terror Groups, Bus. Insider (June 23, 2015), www.businessinsider.com. In fact, it was widely believed that, despite what the officials said publicly, the U.S. government had facilitated payment of ransoms in some circumstances. Shane Harris, U.S. Pays Off Hostage Takers, Daily Beast (Apr. 29, 2015), www.thedailybeast.com. For legal background on the issue of ransom and the prohibition on material aid to terrorists, see Schulman, Asylum Seekers.

8 Statement by the President on the U.S. Government’s Hostage Policy Review (June 24, 2015); Office of the Press Secretary, The White House, Executive Order: Hostage Recovery Activities (June 24, 2015); Julie Hirschfeld Davis, Families Press for Changes in Policy on Hostages, N.Y. Times (May 29, 2015), www.nytimes.com.

9 In announcing the new policy, the White House made clear that the government’s position ending prosecution of ransom-payers applied only to families of victims. See Office of the Press Secretary, The White House, Fact Sheet: U.S. Government Hostage Policy (June 24, 2015).

10 See Adam B. Ellick, With a Plan and a Rope, Captives Escape Taliban, N.Y. Times (June 21, 2009), www.nytimes.com.

11 See Eric Schmitt, Seized Times Reporter Is Freed in Afghan Raid That Kills Aide, N.Y. Times (Sept. 9, 2009), www.nytimes.com.

12 See Steven Morris, Inquest Pays Tribute to British Soldier Who Died Rescuing Journalist, The Guardian (Mar. 16, 2011), www.theguardian.com.

See Death of Sultan Munadi, Journalist Killed During Raid, Angers Afghans, HuffPqst (Nov. 9, 2009), www.huffingtonpost.com; Bob Dietz, Afghan Journalists Call for Justice in Mundi’s Death, Committee tq Protect Journalists (Sept. 14, 2009).

See, e.g., Andrew Pierce, Thomas Harding & Ben Farmer, Army Anger as Soldier Killed Saving Journalist Who Ignored Taliban Warning, The Telegraph (Sept.

9, 2009), www.telegraph.co.uk; Tim Shipman, Miliband Criticises Kidnapped Journalistfor Ignoring ‘Very Strong Advice’ Against Travel in Afghanistan, The Daily Mail (Sept. 11, 2009), www.dailymail.co.uk.

See Sultan Munandi, Revqlvy, www.revolvy.com/page/Sultan-Munadi (citing inquest that finds Munadi was shot both by Taliban fighters and the British forces).

See New York Times “Paid Millions” to Release David Rohde From Taliban:

Reporter, HuffPqst (Mar. 18, 2010), www.huffingtonpost.com; John Cook, Did the New York Times Lie about Paying a Ransom for David Rohde’s Release?, Gawker (Nov. 2, 2009), https://gawker.com.

See Rqhde & Mulvihill, A Rqpe and a Prayer.

See Jeremy W Peters, Freed Times Journalists Give Account of Captivity, N.Y. Times (Mar. 21, 2011), www.nytimes.com.

See id.

See, e.g., International SOS Foundation, U.S. Legal Brief: Duty of Care and ManagingLiabilityfor International Assignees (June 25, 2015). See also Holly Young, Steve Dennis and the Court Case That Sent Waves Through the Aid Industry, The Guardian (Dec. 5, 2015), www.theguardian.com.

See, e.g., Sabrina Siddiqui & David Smith, Trump’s Attacks on Media Raise Threat of Violence Against Reporters, UN Experts Warn, The Guardian (Aug. 2, 2018), www.theguardian.com; Daniel Politi, Trump Doubles Down on Attacking ‘Dangerous and Sick’ Journalists: ‘They Can Also Cause War!’, Slate (Aug. 5, 2018), slate.com.

Steve Erlanger, ‘Fake News,’ Trumps Obsession, Is Now a Cudgel for Strongmen, N.Y. Times (Dec. 12, 2017), www.nytimes.com.

Id.

Id.

Id.

Id.

David Remnick, Trump v. The Times: Inside an Off-the-RecordMeeting, The New Yqrker (July 30, 2018), www.newyorker.com; Mark Landler, New York Times Publisher and Trump Clash Over President’s Threats Against Journalism, N.Y. Times (July 29, 2018), www.nytimes.com.

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