Reply to Marty on NSA Program and The Times

Marty puts the



Has there ever been any case in which a serious American newspaper declined to publish information it had about felonious conduct at the highest levels of government? And if that meant the cessation of the program, so be it – because the program was, after all, unlawful. Unlawful programs should be ended – or, in any event, the Times was quite justified in acting upon a strong presumption to that effect .

But note the equivocation.  He starts of with a ringing call for moral clarity-“unlawful programs should be ended.”  But, good lawyer that he is, he builds in a safety hatch-there should be “a strong presumption to that effect”-without absolutely committing himself to it.  And why a presumption rather than a rule?  Do we really need to ask the eminences at the Columbia School of Journalism, as David would advise us to do?  Because there are no absolutes in this world, and in some cases-where the damage to national security would be sufficiently high, one can surmise?-The Times would not be justified in publishing the information.  Whatever.  Lawyers like to talk about rules-and-presumptions.  I prefer to talk in terms of balancing costs and benefits.  Jack Goldsmith, who can claim a measure of credibility and who has seen classified information that we have not, says : “I agreed with President Bush that revelations by Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ‘great harm’ to the nation.”

Marty can’t deny the relevance of the benefit of the program to the question of whether The Times should report the story.  After all, if the benefit of the program were irrelevant, there is no need for a presumption.  Did The Times consider whether the presumption had been rebutted?  If The Times had good reason to believe that the national security benefits of the program were small, Lichtblau doesn’t tell us what it was.

So what are the costs of the program?  Presumably, the harm to innocent people who were inadvertently (or deliberately) spied upon-but no one knows what that is.  Instead, Marty emphasizes its sheer illegality-an abstract cost but a real one.  But its illegality was in the process of being corrected by Justice Department lawyers before the story was released, indeed before the reporters knew anything at all (which David cleverly interprets as part of the story’s newsworthiness). 

Goldsmith believed that the problems of illegality could be resolved, and he and others sought to do so by working with the FISA court, restraining the executive branch, and encouraging the White House to cooperate with Congress.  He believed that an effective program could be made lawful, and he and his colleagues were in the process of bringing about that result.  But The Times made that particular outcome-a lawful program that was also effective because it was secret-impossible by publicizing it to the world.

Marty believes that The Times published the story because it discovered that the NSA program was illegal.  I don’t agree .  But if Marty is right, so much the worse for The Times.  I find it hard to believe that Marty thinks that destroying a plausible national security program in order to expose illegal actions that (Goldsmith believed) could have been, and soon were to be, placed on a sounder legal footing, and did not (so far as we or The Times know, so far) actually injure anyone, would be justified.   Such a devotion to the forms of legality, without consideration of the practical effects of a course of action, verges on fanaticism.  Marty’s not a fanatic; if he were, he wouldn’t have included that presumption.