Bush Slams Leak of Terror Finance Story

[69dodge]

It would, except that courts have recognized an exception to the First Amendment for libel actions in limited circumstances.

[...]

The brief answer, though, is that there is an exception for libel under existing law.

I understand the first sentence, sort of, but not the second.

Any law against libel wouldn't count, if it went against the First Amendement, correct? So a court needs to decide that it doesn't actually go against it.

How do courts go about deciding these sorts of things, anyway? I mean, the First Amendment doesn't say anything about libel. So, on what basis can a court decide that, no, really, the amendment didn't mean to rule out laws against libel?

I don't understand law.

Sometimes it seems like there are all sorts of silly technicalities that lawyers and judges scrupulously follow even though there's no good reason to (and even if there are good reasons not to), just because that's what the law says they have to do. And other times it seems like they basically do whatever they want, and then make up nice-sounding justifications for it after the fact.

 

[Ziggurat]

You are talking about morals, then.

Of course I was. I thought that was rather obvious when I specifically asked about actions being wrong even though you had a legal right to do them, which means I was explicitly NOT talking about illegal actions.

Furthermore, seeing as how in the link you gave, Bush did NOT talk about any legal punishment for the NYT, I have every reason to believe that's what Bush was talking about too, and not any threat or attempt at censorship as you have suggested (without evidence).

 

[Apollyon]

Well, not exactly. It's never the case that legislation can trump the Constitution. What I pointed out is that courts can read exceptions into the Constitution permitting certain governmental actions that would otherwise be precluded.

A bad choice of words on my part, but I think you understood where I was coming from.

You're right, though, that a court (it would ultimately have to be the Supreme Court) could conclude that an exception should be created to the generally applicable First Amendment rule in this case. For the reasons discussed in the edit I added to my last post, though, I find it quite unlikely that a court would do so. In any event, under the law as it currently stands, I don't think there's any basis for conviction.

I agree it could be regarded as a form of political speech. However, does the category of "political speech" include disclosing State secrets?

imo, we may find out. After the disclosure of the secret prisons (which has never been verified despite two independent investigations in Europe), the NSA program, and quite a few lesser leaks by the NY Times, this may be the final straw. The problem arises that pursuing this could be a PR nightmare. There's no doubt that if the government goes after the NYT that the left will spin this into a "censorship" issue, and there may be some truth to that. However, newspapers should also demonstrate some responsibility and ethics in regard to public welfare. In this case, the NY Times has shown a complete disregard for public welfare and a valid intelligence collection tool for whatever motivations you want to ascribe to their action. Even though I don't like Bush, the NYT's action nauseates me because any valid motivation I can come up with for that action seems purely low and underhanded. This doesn't hurt just Bush, it hurts us all, and even if the administration doesn't do anything about it I sincerely hope there's some form of public backlash.

 

[CFLarsen]

Of course I was. I thought that was rather obvious when I specifically asked about actions being wrong even though you had a legal right to do them, which means I was explicitly NOT talking about illegal actions.

Furthermore, seeing as how in the link you gave, Bush did NOT talk about any legal punishment for the NYT, I have every reason to believe that's what Bush was talking about too, and not any threat or attempt at censorship as you have suggested (without evidence).

Try to read what I actually say.

 

[casebro]

My guess is that there are some precedents, somewhere. Like the guy who printed "Tax Man's Secrets" is in jail. Somebody must have gone to jail for printing some subversive tract. Perhaps Civil War era? WWI had sedition trials too... German /Americans in WWII? Just as I have freedom of expression, but fighting words are considered criminal assault, there are some limits to freedom of the press.

Like Geraldo in Afganistan, where he gave out too much info and got sent to the rear? The Army certainly limited his "freedom of the press".

 

[gumboot]

Like Geraldo in Afganistan, where he gave out too much info and got sent to the rear? The Army certainly limited his "freedom of the press".

All this talk makes me think of the Crimean War...

What was the famous quote by the Russian dude...

"Why do I need spies when I have The Times?" or something?

-Andrew

 

[JamesDillon]

Sometimes it seems like there are all sorts of silly technicalities that lawyers and judges scrupulously follow even though there's no good reason to (and even if there are good reasons not to), just because that's what the law says they have to do. And other times it seems like they basically do whatever they want, and then make up nice-sounding justifications for it after the fact.

That's not an entirely inaccurate way of looking at it

The job of courts is to "interpret" the law. Basically, they look at the text, and decide what it actually means as applied to the unique factual context of each case. Courts are more or less bound by the text of the statute or constitutional provision in question, but different texts allow (or require) different levels of interpretation. For example, the tax code is famously detailed, and, according to tax lawyers (of which I am not one), the code provides a clear, unambiguous answer for every possible situation that can arise, so the job of a court really is nothing more than looking at the applicable code provision and mechanically applying it to the facts.

The Constitution lies at the opposite extreme of the spectrum. The constitutional text was made purposely vague, allowing (according to one school of interpretation) for the accommodation of evolving standards by the general principles set forth in the Constitution. The best example is the Eighth Amendment, which prohibits "cruel and unusual punishment." What the hell does that mean? It's up to the courts to decide, and their interpretation of that amendment has changed significantly over the centuries. Another good example is the Due Process Clause of the Fourteenth Amendment, which says only that the states may not deprive anyone of life, liberty, or property without due process of law. That vague language has been applied to recognize the constitutional rights to abortion, use of contraception, the right to engage in homosexual intercourse (or not; no one has figured out what Lawrence v. Texas really means yet), and a whole slew of other things that don't seem immediately obvious from the text.

In the case of freedom of the press, the First Amendment says only that Congress shall make no law "abridging the freedom of speech, or of the press." Again, obviously, some interpretation is necessary to figure out how that vague principle to apply to specific cases. Does that mean that Congress can never pass laws prohibiting anyone from saying anything? That would seem to preclude any kind of Espionage Act at all, which would be an absurd result and clearly not what the Founders intended. So, yes, courts use their best judgment to figure out how these principles should be applied. It isn't always a pretty, or even an intellectually consistent, process, but it's the best we've managed to come up with.

 

[JamesDillon]

Even though I don't like Bush, the NYT's action nauseates me because any valid motivation I can come up with for that action seems purely low and underhanded. This doesn't hurt just Bush, it hurts us all, and even if the administration doesn't do anything about it I sincerely hope there's some form of public backlash.

I don't know; personally I think the public has a need to know that the government is doing things like abducting foreign citizens from airports and shuttling them away in the dead of night to secret prisons in Eastern Europe, where they may or may not be tortured for months on end. I'll grant that the financial transactions thing is perhaps a little less of a compelling case for the disclosure of classified information.

I agree with you that this would make an interesting test case. I'd like to see how the Court would rule on it, should the administration decide to pursue the matter.

 

[gumboot]

Guys thanks for discussing lots of things like this... I am learning a lot about you Americans and how you run things...



Keep 'em coming.

-Andrew

 

[Apollyon]

I don't know; personally I think the public has a need to know that the government is doing things like abducting foreign citizens from airports and shuttling them away in the dead of night to secret prisons in Eastern Europe, where they may or may not be tortured for months on end. I'll grant that the financial transactions thing is perhaps a little less of a compelling case for the disclosure of classified information.

The prisons would have been good information to know, if it had turned out to be true. One of the investigations in Europe was begun with the preconcpetion that these charges were most definitely true, yet they still couldn't uncover one iota of compelling evidence.

For some reason, the NYT never diligently followed up on that fact. Go figure.

I agree with you that this would make an interesting test case. I'd like to see how the Court would rule on it, should the administration decide to pursue the matter.

Question: If the NYT is brought to trial on this issue, would they be able to print articles discussing the case or commenting on it, or would their status as a defendent prohibit them from doing so?

 

[pgwenthold]

Like Geraldo in Afganistan, where he gave out too much info and got sent to the rear? The Army certainly limited his "freedom of the press".

Not really. He could say whatever he wanted. However, what they did was limit the information that he was provided by them. I see nothing wrong with the government providing particular access with restrictions on what could be disclosed. And when Geraldo violated those restrictions, he lost access to the special consideration he was getting.

All of this underscores the point: if the government does not want journalists to disclose priviledged information, then they shouldn't give them priviledged information.

Blame the people who told the NYT. They are the ones who violated the law by passing classified information on to people without proper security clearance.

 

[JamesDillon]

The prisons would have been good information to know, if it had turned out to be true. One of the investigations in Europe was begun with the preconcpetion that these charges were most definitely true, yet they still couldn't uncover one iota of compelling evidence.

For some reason, the NYT never diligently followed up on that fact. Go figure.

From the New York Times, June 8 (registration required, unfortunately):

Report Faults Europe in C.I.A. Detainee 'Web'
Fourteen European countries worked with the Central Intelligence Agency in the secret transfer of terrorism suspects, and two of them -- Romania and Poland -- probably harbored secret C.I.A. detention centers, the Council of Europe contends in a report issued Wednesday.

The United States ''created this reprehensible network,'' the report's author, Dick Marty, a member of the Swiss Parliament, said in the report. ''But we also believe to have established that it is only through the intentional or grossly negligent collusion of the European partners that the 'web' was able to spread over Europe.''

But the report concedes that the Council has no hard evidence.

Tracing ''a global spider web'' of presumed prisons and transfer points, the report suggests that European involvement was deeper than previously surmised. Mr. Marty, a former prosecutor, describes an elaborate and organized system for the abduction and interrogation of terrorism suspects, consisting of several landing points, where civilian and military planes either stopped or refueled on their way to and from detention centers in Cuba, Afghanistan and Iraq.

Those are just some highlights, but I don't see how you can say that the claims turned out not to be true, or that the NYT hasn't followed up.

Question: If the NYT is brought to trial on this issue, would they be able to print articles discussing the case or commenting on it, or would their status as a defendent prohibit them from doing so?

There wouldn't be any legal reason that I'm aware of why they couldn't talk about it in print, though they might decide as a strategic decision to refrain from doing so. Lawyers frequently don't like it when their clients talk in public about ongoing litigation, because clients tend to say stupid things.

 

[Apollyon]

From the New York Times, June 8 (registration required, unfortunately):


Those are just some highlights, but I don't see how you can say that the claims turned out not to be true, or that the NYT hasn't followed up.

I didn't say the NYT hadn't followed up on it. I said they hadn't done so "diligently."

Note the key phrase from the story that somehow only warrants a single sentence:

"But the report concedes that the Council has no hard evidence."

I read that report. You know what their innuendo is based on? Marty basically claims that it must be true because it was reported in the newspapers and 'Look, there were all those unknown CIA flights.'

A ration of circular logic and tenuous assertions do not make a compelling case. In fact, there has been speculation that this story was merely a plant within the CIA to root out some of the leakers. Purely speculation, sure, but food for thought.

There wouldn't be any legal reason that I'm aware of why they couldn't talk about it in print, though they might decide as a strategic decision to refrain from doing so. Lawyers frequently don't like it when their clients talk in public about ongoing litigation, because clients tend to say stupid things.

Thanks for the info.

 

[JamesDillon]

I read that report. You know what their innuendo is based on? Marty basically claims that it must be true because it was reported in the newspapers and 'Look, there were all those unknown CIA flights.'

I haven't read the report, and should probably do so before I can comment on this intelligently. However, I would note that the Times article also says:

In the report, Mr. Marty defended the conclusions he formed, despite lacking explicit evidence, saying, ''Even if proof, in the classical meaning of the term, is not as yet available, a number of coherent and converging elements indicate that such secret detention centers did indeed exist in Europe.'' He said his panel had done all it could, considering it lacked investigatory powers, including the right to subpoena documents.
...
Mr. Marty acknowledged that his evidence for the existence of secret C.I.A. prisons in Romania and Poland was circumstantial but said it was strong enough to justify further investigation. He relied primarily on flight logs provided by the European Union's traffic agency, Eurocontrol, witness statements by people who said they had been victims of abduction by the C.I.A. and judicial and parliamentary inquiries in various countries.

That doesn't sound like a particularly weak case to me. Skepticism is, obviously, a virtue, but there comes a point at which one must admit that the accumulated circumstantial evidence is sufficient to justify a provisional conclusion that there is more likely than not some truth to these allegations. Given that, as far as I can tell from the Times article, Marty's report is based largely on the consistent reports of a number of independent witnesses and the corroborating evidence of flight logs, I think we're past that point. While we can agree that further investigation is necessary before the full extent of the situation is known, continuing to flatly deny that these reports have any validity seems tantamount to planting one's head firmly in the ground while humming loudly.

I would add that the Swiss aren't exactly known for their partisanship.

Does anyone know if this has been getting more coverage in the foreign press? Even the "liberal" American press like the NYT frequently shy away from taking on issues like this. I know that Guantanamo has gotten a lot more criticism in the rest of the world's press than it has here.

 

[Ziggurat]

Try to read what I actually say.

That's a non-reply if I ever heard one, and quite ironic after YOU misinterpreted my question, and said that courts had to decide in a question where I explicitly posited that no laws had been broken. You make bizare assertions, you get smacked down repeatedly for not having an argument, you fail to back up your claims or answer questions, and you act indignant and claim people can't read your writing because they have the gall to refuse to jump to the unsupported conclusions you make. I HAVE read what you wrote. And I've also noted how you consistently failed to back up your original assertion that Bush's criticism of the NYT constitutes an attempt at censorship in any way, shape, or form.

 

[Apollyon]

I haven't read the report, and should probably do so before I can comment on this intelligently. However, I would note that the Times article also says:



That doesn't sound like a particularly weak case to me. Skepticism is, obviously, a virtue, but there comes a point at which one must admit that the accumulated circumstantial evidence is sufficient to justify a provisional conclusion that there is more likely than not some truth to these allegations. Given that, as far as I can tell from the Times article, Marty's report is based largely on the consistent reports of a number of independent witnesses and the corroborating evidence of flight logs, I think we're past that point. While we can agree that further investigation is necessary before the full extent of the situation is known, continuing to flatly deny that these reports have any validity seems tantamount to planting one's head firmly in the ground while humming loudly.

I would add that the Swiss aren't exactly known for their partisanship.

Does anyone know if this has been getting more coverage in the foreign press? Even the "liberal" American press like the NYT frequently shy away from taking on issues like this. I know that Guantanamo has gotten a lot more criticism in the rest of the world's press than it has here.

The main problem I have is that Marty started out this investigation with an acknowledged bias and presumption of guilt on the part of the Bush admin, then went hunting for evidence to back up that presumption in order to validate his bias. Yet he still couldn't find anything other than anecdotal and circumstantial evidence, if it could even be deemed "evidence" at all. Not only that, but some countries that were implicated as complicit in this, such as Poland, flatly denied any involvement whatsoever.

Much of what Marty has produced in his claims is akin to the kind of "evidence" the CTs use for their explanation of how Bush was involved in 9/11. It's long on assumption, he said/she said, and speculation; and completely devoid of any solid proof.

 

[CFLarsen]

That's a non-reply if I ever heard one, and quite ironic after YOU misinterpreted my question, and said that courts had to decide in a question where I explicitly posited that no laws had been broken. You make bizare assertions, you get smacked down repeatedly for not having an argument, you fail to back up your claims or answer questions, and you act indignant and claim people can't read your writing because they have the gall to refuse to jump to the unsupported conclusions you make. I HAVE read what you wrote. And I've also noted how you consistently failed to back up your original assertion that Bush's criticism of the NYT constitutes an attempt at censorship in any way, shape, or form.

That's pretty good, considering that I didn't assert that at all.

 

[JamesDillon]

Much of what Marty has produced in his claims is akin to the kind of "evidence" the CTs use for their explanation of how Bush was involved in 9/11. It's long on assumption, he said/she said, and speculation; and completely devoid of any solid proof.

I find it hard to equate allegations reported in several reputable newspapers, and a report by a government official citing among its sources legislative and judicial inquiries conducted by several other nations, with a conspiracy theory along the lines of Loose Change. But, having not yet read the report, I've unfortunately reached the limit of my competence to discuss this issue until I have looked into it more closely.

Would appreciate any further commentary from someone who has read it, though.

 

[Apollyon]

Here's a place with a lot links to the story from which you can start your research:

http://jurist.law.pitt.edu/paperchase/2006/06/accused-states-denounce-europe-report.php

 

[Ziggurat]

That's pretty good, considering that I didn't assert that at all.

You said,

"I don't see anyone pressing charges. Has any law been broken?

If not, how is this not an attempt of government censorship?"

To paraphrase you, how is this not an accusation of attempted censorship? Surely you asked that question for a reason, didn't you?

You're certainly earning your reputation once again.