David asks an interesting
(which I overlooked before–apologies):
But the plain fact is that the President could have sought an injunction. 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 asked a judge to do so. So, on Eric’s own reasoning, the truly irresponsible actor here is none other than President Bush, right? So why take on Mr. Lichtblau?
There is a funny notion embedded in this question that I have to choose between Bush and Lichtblau, that if I criticize Lichtblau, I must be defending Bush. However, the question is a good one. And the answer is probably not, or not just, that courts are extremely reluctant to enjoin media from publishing stories, so such an effort would have been futile and politically embarrassing. The most plausible answer is that The Times gave Bush no choice. In Lichtblau’s words :
Th[e] decision was helped along by a chance conversation I had soon after our White House meeting. The administration, I was told, had considered seeking a Pentagon Papers-type injunction to block publication of the story. The tidbit was a bombshell. Few episodes in the history of the Times-or, for that matter, in all of journalism-had left as indelible a mark as the courtroom battle over the Pentagon Papers, and now we were learning that the Bush White House had dusted off a Nixon-era relic to consider coming after us again. The editors in New York had already decided they would probably print the story in the newspaper for that Friday, Dec. 16, 2005, but when word of the Pentagon Papers tip reached them, they decided they would also post it on the Internet the night before. That wasn’t routinely done at that time on “exclusive” stories because we would risk losing the scoop to our competitors, but the editors felt it was worth the risk. The administration might be able to stop the presses with an injunction, but they couldn’t stop the Internet.