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?