Convictions : national security

More on Marty, the NSA, and the Times

Eric Posner — Fri, 28 Mar 2008 16:30:00 GMT

So it just comes down to different judgments about the proper weighing of the costs and benefits of publication. Marty thinks that the legal arguments are bad (high benefit from publication) and suspects that the secrecy of the NSA program was not important (low cost from publication). I don't think that the legal arguments are as bad as he does (for another day...) but, even assuming he is right, it remains the case that he believes that if the benefits of secrecy were high enough, the Times should not have published. Hence the rebuttable (sorry, "almost irrebuttable") presumption. Because Marty admits that he does not know whether the harm caused by disclosure of the program was significant or not, he cannot say whether the presumption was rebutted. So on the merits, Marty is in no position to say that this is an "easy case."

Still, I take his view to be that even if we can't know whether this was an easy case on the merits, the evidence suggests that it was an easy case for the Times, which presumably understood the harm that would be caused by the program's disclosure. Marty takes Lichtblau at his word that the government failed to give The Times persuasive information (new, secret information?) that the harm caused by disclosure would be significant. However, the Times' behavior—the 13 month delay before publication—suggests otherwise. Even on Marty's interpretation of Lichtblau, the Times believed that the national security reasons for holding off publication of the story that the U.S. government was spying on thousands of Americans were justified, until it learned that U.S. government officials had doubts about the program's legality. So the Times anyway did not think the national security argument was trivial. It thought that this argument was good enough to withhold the story that Americans were being spied upon, but not good enough to withhold the story that Americans were being spied upon illegally. This might have been the right decision, but an easy case?

Only if one trusts the Times' judgment about the national security risks and only if one puts tremendous weight, as Marty does again and again, on the weakness of the legal justification for the program. If we don't trust the Times' motives, we are back to the "who decides" question with which I began. Marty uses a lawyer's trick in order to evade the most serious weakness in his argument: that (as he admits) he doesn't know the magnitude of the harm caused by the disclosure and that (as he doesn't admit) we don't know whether the Times' own judgment on this issue was reasonable. This trick is to assert presumptions that favor an outcome that reflects one's normative position. For Marty, what we do know (that the administration broke the law or that the Times plausibly believed that it did) creates the presumption in favor of disclosure. Mere uncertainty (about the magnitude of the harm or the Times' view about the magnitude of the harm) can't, for a lawyer, overcome a presumption. Q.E.D. This is a recurrent tactic in security versus civil liberties arguments like this one.

But there is no reason to assert the presumption in favor of disclosure. One can just as easily argue that the Times should have treated (or did treat) the government's national security justification of the program as creating a presumption against publication that could be rebutted with evidence that failure to disclose would cause significant harm. (I would prefer to see the harm characterized in terms of actual people injured by the activity; Marty claims to be more concerned about the abstract harm of illegality, as if this alone could rebut the presumption, but if he really believes this, I don't see why he would go to the trouble of converting a bunch of legal fictions about congressional intent into fact.) There is no particular reason to think that the presumption should go in one direction or another. This legalistic language just obscures the normative questions at stake: whether the Times acted properly or not, and whether it and other media can be trusted to make the right decisions in the future, when we, the public, don't know the magnitude of the harm. This is why it is so important to determine whether Lichtblau's account of the Times' decision-making process is plausible and appealing.

Finally, in response to Deborah, I recognize that courts are very reluctant to impose prior restraints on publication even for the sake of national security, and that the doctrine allows for only very narrow exceptions which would probably not apply in this case. (Yet, we still don't know what the harm was. ...) I'm raising the question whether these rules make sense anymore but I don't have a firm view myself. I don't see any reason for thinking that the media are in a better position than judges to make the correct decision (the point of discussing Lichtblau in the first place), but it may be, practically speaking, impossible to imagine the doctrine being in any other way. I do think, though, that a judge rather than the executive branch itself should make the decision whether a newspaper can go ahead with publication (how much deference the judge should give to the executive branch's reasoning is another hard question), and I don't believe that this view is inconsistent with my prior work.

NYT? What's Bush's Excuse for Keeping Law Violations Secret?

Dawn Johnsen — Fri, 28 Mar 2008 05:24:00 GMT

Eric writes, "The question was whether The Times went about making its decision [to reveal the Bush administration's violations of FISA] in a responsible way." Marty and David's responses (citing Eric Lichtblau's column) have devastated any suggestion to the contrary (at least to my satisfaction; Eric P. seems unconvinced). I see little to add to their very strong posts on that question.

But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?

I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else)-despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark. Whether a President ever may legitimately act contrary to a statute is itself a controversial question. I believe the answer is yes, in extremely rare and limited circumstances (circumstances that clearly were not satisfied in the FISA or torture controversies). But how can it be faithful to our system of government for the President to act contrary to federal statutes in secret?!

Reply to David Regarding The Times and the NSA Program

Eric Posner — Thu, 27 Mar 2008 22:35:00 GMT

David, there was nothing "abstract" about what The Times was doing. Are you saying that any possible harm to national security was negligible, or irrelevant?

I did not argue that The Times should not have disclosed the existence of the program, a question about which I have no opinion, having no access to the relevant facts. The question was whether The Times went about making its decision in a responsible way. Nothing in Lichtblau's account gives one confidence that it did. One ought, at least, to wonder whether the "unseemly competitive motive" of newspapers--you put it so much less heroically than Lichtblau does--should be expected to result in publication decisions that serve the national interest in the post 9/11 world. Let us examine the evidence rather than consult the oracles at the Columbia School of Journalism.

The Reporter as Dramatic Hero: Some Skepticism

Eric Posner — Thu, 27 Mar 2008 21:21:00 GMT

Elsewhere on Slate, Eric Lichtblau describes the "inside drama" behind The Times' wiretapping story, a drama in which our hero confronts the arrayed forces of the U.S. government, momentarily stumbles, picks himself up, brings the Bush administration to its knees, and learns important things about the world (that government officials sometimes lie, for example).

Many people have wondered why The Times did not report the NSA program in the fall of 2004, when Lichtblau and his colleague, James Risen, uncovered the story, but instead waited until December 2005. If the Times did not believe the administration's national security reasons for keeping the program secret, it should have published in 2004. If it did believe those reasons, then it should not have published in 2005. The only legitimate explanation for its change of heart would have to be some additional information or event that came to its attention between the fall of 2004 and December 2005. What was it?

Lichtblau does not really tell us, but several possible explanations emerge from his account.

1. Reporters had become increasingly distrustful of the Bush administration. Too many of the things it said turned out to be false.

2. The sense of outrage about 9/11 had faded, and reporters were less likely to give the government the benefit of the doubt.

3. Over the course of those 13 months, the reporters learned that the program was unlawful.

4. Risen decided (on his own?) to publish the story in a book he was writing. The Times did not want to be scooped by its own reporter.

The first and second explanations have some psychological plausibility, but, to my mind, they are not persuasive. Anyone with any knowledge about how the U.S. government has behaved in the past, in normal times and during emergencies, could not possibly believe that government officials are always to be trusted. Could The Times' reporters really have been so naïve? More likely, The Times' editors feared a public backlash if The Times expressed excessive skepticism about the government's motives in the wake of 9/11. Actually, more than three years after 9/11. That hardly speaks well for The Times, either.

As for the third explanation, Lichtblau says that he and Risen already knew about internal Justice Department disagreement about the legality of the program in the fall of 2004. And The Times did not need to use the legal issues as an excuse for publication; it reported the SWIFT monitoring program without claiming that this program was of doubtful legality. (Ironically, as Jack Goldsmith relates in his book, The Terror Presidency, government lawyers who had expressed doubts about the legality of the program had won the day, and were working to put the program on sounder legal footing, long before the story was published.)

This brings us to the fourth explanation. Can it really be the case that The Times was forced to publish by a reporter? One can only feel queasy. The actual decision to publish was, in effect, made not even by The Times' editors, who might be expected to take a broader view of things, but by a single reporter acting on his own? Is the drama supposed to be a comedy, or a tragedy? ("'You sure you know what you're doing?' I asked finally. He shrugged." Mamet? Pinter?)

So Lichtblau does not give us an account for the delay that is both plausible and appealing. Lichtblau also never mentions whether he and his editors discussed the issues that would seem most obviously pertinent to the question of publication: was the program effective?; would it have been seriously undermined by its disclosure?; was it illegal?; and, what should reporters reasonably believe, given their limited knowledge of what is going on? Surely his editors thought about these things. Or was it just a question of PR: will people praise us for our brave reporting or condemn us for undermining national security? Failing to address these questions in his account (he dismisses the national security worries as "clichés" rather than explaining why he disbelieved them), Lichtblau gives the impression that he is and was indifferent about what the answers might be. Was it just a matter of skewering the government that had lied to him, national security be damned?

Several questions are raised by this episode. Suppose The Times or some other newspaper stumbles upon yet another government counterterror program that has been kept secret and whose value depends on secrecy. One question is a matter of substance: if the value of a counterterror program depends on its being kept secret, under what circumstances should the media nonetheless report it? As long as the program has any news interest (as it always will)? Only when the program might, if misused, cause harm to Americans or others (as it almost always will)? Only when there are legal doubts about the program (as there often will be)? Is the effectiveness of the program relevant, and does the administration have the burden of proving the effectiveness of a program (how, exactly?) in order to persuade a newspaper not to publicize it? Lichtblau does not address any of these questions; indeed, he gives the impression that he has never even thought about them.

The second question is the Who Decides question. Lichtblau says that the Times was spurred into action when it heard that the Bush administration was thinking of seeking a Pentagon Papers-style injunction against publication. Of course, the press has expressed longstanding opposition to prior restraints. However, in an ideal world, wouldn't it be better for a judge, rather than a newspaper editor, to decide whether a national security program should be compromised because of doubts about its value or legality? How was The Times to know whether the secret program was lawful or not? And how was it to evaluate its effectiveness and the importance of continued secrecy? Indeed, a trial was held; the administration made its case. It's just that The Times was the prosecutor and the judge. And whatever the editors of The Times might have really thought, their hand was forced by a single reporter acting on his own.