Eric's Surprising Argument for Why Bush Acted Irresponsibly in the FISA Case

Slate's blog on legal issues.
March 28 2008 10:55 AM

Eric's Surprising Argument for Why Bush Acted Irresponsibly in the FISA Case

Eric asks a reasonable but ultimatelyt thetrical quesiton of me: do I think natinal security concerns should wiegh in the balance concerning publication? Of course national security concerns should be part of the calculus as to whether to publish.  Just like he n doubt thinks concerns about legality should be weighed as well.  After all, he surely knows that reporters every day refrain from publishing all kinds of interesting national security info -- such as troop positions in Iraq. But as I suggested, and Marty amplifies, it's hard to see how the concern he raises could swamp the serious legal concerns in this case.  Surely Eric is not saying that any potential national security harm is enough to bar publication.   And surely he realizes that by allowing a free press, given the self-selection of who goes into the journalism business, means that in such cases one might well expect the journalists to tilt in favor of publication; we have as a society created a civic culture in which publication is likely when the entire Justice Department is about to quit.  (Eric does say that the disclosure prevented an effective and legal program from being put in place but he offers no evidence that this is correct -- who says the settlement reached within the Administraiton is either effective or legal other than, it appears, him and the adminstration itself?) But let's put all that aside.  Eric thinks the president should be entitled to seek an injunction to stop publication and that the rules against prior restraint perhaps should be altered to favor the President if he does so.  Never mind that not long ago Eric argued on this blog that: "It is easy to understand why certain political freedoms should be put beyond the arena of politics and be protected by courts.  Without such rules, the party in power can entrench itself and undermine political competition.  It is hard to understand the analogous arguments for constitutionalizing gun rights."  But the plain fact is that the President cou;d have sought an injucntion.  And the simple fact is that our elected president did not seek an injunction in this case.  So the reason no judge weighed in here on whether this should have been published is that no president aksed as judge to do so.  So, on Eric's own reasoning, the truly irrepsonsible actor here is none other than President Bush, right?  So why take on Mr. Lichtblau?

TODAY IN SLATE

Politics

Meet the New Bosses

How the Republicans would run the Senate.

The Government Is Giving Millions of Dollars in Electric-Car Subsidies to the Wrong Drivers

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Cheez-Its. Ritz. Triscuits.

Why all cracker names sound alike.

Friends Was the Last Purely Pleasurable Sitcom

The Eye

This Whimsical Driverless Car Imagines Transportation in 2059

Medical Examiner

Did America Get Fat by Drinking Diet Soda?  

A high-profile study points the finger at artificial sweeteners.

The Afghan Town With a Legitimately Good Tourism Pitch

A Futurama Writer on How the Vietnam War Shaped the Series

  News & Politics
Photography
Sept. 21 2014 11:34 PM People’s Climate March in Photos Hundreds of thousands of marchers took to the streets of NYC in the largest climate rally in history.
  Business
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
  Life
Quora
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Tv Club
Sept. 21 2014 1:15 PM The Slate Doctor Who Podcast: Episode 5  A spoiler-filled discussion of "Time Heist."
  Arts
Television
Sept. 21 2014 9:00 PM Attractive People Being Funny While Doing Amusing and Sometimes Romantic Things Don’t dismiss it. Friends was a truly great show.
  Technology
Future Tense
Sept. 21 2014 11:38 PM “Welcome to the War of Tomorrow” How Futurama’s writers depicted asymmetrical warfare.
  Health & Science
The Good Word
Sept. 21 2014 11:44 PM Does This Name Make Me Sound High-Fat? Why it just seems so right to call a cracker “Cheez-It.”
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.