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.