Defending My “Devotion to the Forms of Legality,’ “Verging on Fanaticism”

Guilty as charged .  Yes, careful lawyer that I try to be, I did include a qualification to suggest that maybe there could, one day, be some case in which a newspaper should refrain from publishing a story about rampant illegality, affecting the privacy of tens or hundreds of thousands of U.S. persons, authorized by the President of the United States (in part on a theory that he has the constitutional authority as Commander in Chief to disregard the law).   I can’t just now think of what that case might be; but who knows?  Hence, my assumption that the Times applied a strong, almost irrebuttable presumption in favor of publishing (once it was convinced the program was unlawful), rather than a bright-line rule.  But I agree with David – it’s hard to imagine an easier case than this one.

Did the program “benefit the nation,” in the sense of providing the intelligence community with relevant and important information it would not have obtained under FISA?  I certainly hope so.  But then, that would be true, in spades, if the President simply ignored all legal restrictions on intelligence-gathering – an Executive unbounded by laws regulating surveillance, detention, interrogation, etc., would undoubtedly obtain far more information about the enemy than an Executive who takes care that such laws are faithfully executed. 

And therefore … what, exactly?  If that sort of “benefit” were a sufficient reason to refrain from publishing, then newspapers would never reveal any wrongdoing undertaken for security-related reasons (or for any other public purpose, for that matter).  Eric doesn’t suggest such a rule, of course – he would ask the Times to weigh the benefits of lawbreaking against the “costs.”  I’m sure that at some level, the Times made such a calculation, based on what little they knew (i.e., as with Eric and me, not very much).  Indeed, they invited the Administration to make the case that the program was legal, or that this was the rare case in which, despite the illegality of the program, the cost/benefit balance was so out of whack that my presumed “presumption” in favor of publishing a story about gross executive lawbreaking should have been rebutted.  As it turns out, however, the Administration gave them very little reason to rebut the presumption – and what it did say to the Times turned out to include representations that the Times discovered to be blatantly false, which left the Times with no reason at all to think that the presumption should be overcome – and with a great deal of skepticism that the sky would, indeed, fall.

Callous disregard for the real costs and benefits?  Hardly.  What the Times knew, and what Eric conspicuously ignores, is that we as a nation had already engaged in a wide-ranging, detailed, and contested debate, over three-plus years, about the various costs and benefits of allowing the executive free reign to engage in domestic electronic surveillance, and we had reached a consensus about the proper resolution of such calculations in the manner prescribed by the Constitution:  We enacted a law , by overwhelming majorities of both houses of Congress, and with the support of Presidents of both parties – the Foreign Intelligence Surveillance Act.  And Congress had repeatedly amended that law over the years whenever the executive made the case that the cost/benefit analysis had changed.  (Eric confidently states that the NSA program did not, so far as we know, “actually injure anyone.”  This is just another way of saying that Eric disagrees with the vast majorities of Presidents, legislators and the public who have concluded that there are real harms when the government surveilles its citizens’ e-mails and phone calls.)

Continue reading at Balkinization …