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Did the New York Times Have a Good Reason for Reporting the Illegal Wiretapping?

By Jack M. Balkin

Eric Posner claims not to be able to discern from from Eric Lichtblau's column just why the Times changed its mind between 2004 and 2005 about publishing the story revealing the Bush Administration's unlawful wiretapping program.

What's the great mystery?

Apparently, in 2004 Administration officials asked the Times not to publish because, among other things, they insisted that there was never any serious legal debate within the administration about the legality of the program; that DOJ had always signed off on its legality; that the lawmakers who were briefed on the program never voiced any concerns; that there were tight controls in place to guard against abuse; and that the program would be rendered so ineffective if disclosed that it would have to be shut down immediately.

Risen and Lichtblau questioned these representations at the time, but couldn't persuade their editors that they were untrue. What changed in 2005? Eric P. says that Eric L. "does not really tell us." Really? Lichtblau reports that in 2005,

we went back to old sources and tried new ones. Our reporting brought into sharper focus what had already started to become clear a year earlier: The concerns about the program?in both its legal underpinnings and its operations?reached the highest levels of the Bush administration. There were deep concerns within the administration that the president had authorized what amounted to an illegal usurpation of power. The image of a united front we'd been presented a year earlier in meetings with the administration?with unflinching support for the program and its legality?was largely a façade. The administration, it seemed clear to me, had lied to us. And we were coming closer to understanding the cracks. By the time we met with White House officials in December 2005, Keller had all but made up his mind: The legal concerns about the program were too great to justify keeping it out of public view.

In other words, by late 2005, the Times had become much more convinced than a year earlier -- based on additional sourcing -- that (i) the program was illegal; (ii) that there were deep concerns within the Administration that the President had unlawfully authorized the program; and (iii) that because the Administration had lied to the Times about these important matters, there was much less reason to believe the other representations it had made -- about lawmakers being unconcerned, about tight controls, and about the fact that the program would have to end if the Times published. So there was really nothing much in terms of credible Administration arguments any longer weighing against publication. (Eric P. asks: "How was The Times to know whether the secret program was lawful or not?" Well, its reporters can read FISA, for one thing. And ask lawyers within the Administration, for another. After the Times story broke, it was not at all difficult for almost all careful observers to conclude quite easily that the program was unlawful. It's not really that close a question.)

What Lichtblau does not specifically say, but what must also have been the case, was that the Times probably decided that if the program was unlawful, as the Times and many in the Administration had concluded it was, then it was virtually incumbent on the Times to report it: 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. (UPDATE: As I was writing this, David Barron was making the same point much more effectively in this post.)

One other, related point: Eric P. suggests that, because history shows that Administrations are not to be trusted, the Times would have been "naive" to have ever believed the Administration's representations in 2004 -- and that therefore Lichtblau must be dissembling when he writes that his editors placed faith in the Administration at that earlier date, and only came to lose trust in 2005, when the lies were exposed. I've never been a direct part of such discussions, but my understanding is that this is dead wrong. Whenever the government meets with a newspaper to persuade it not to publish a story for national security purposes, the tradition has been -- for good reason -- for the Administration to be as forthright and trustworthy as possible, so that the newspaper will have a great deal of confidence in its representations. When the Times found out that it was being played by the Administration, and that nothing the Administration said could be trusted, such a striking departure from the historical norm gave the Times every reason to believe, more than it had in the past, that it was being sold a bill of goods in most or all particulars, and that therefore it had no good, reliable reason not to publish.

Full post as published by Balkinization on March 27, 2008 (boomark / email).