Gabriel Schoenfeld points out in the Weekly Standard that the administration’s nominee to be general counsel of the Army, Solomon B. Watson IV, was general counsel of the New York Times when it broke the story of the Treasury’s program to uncover terrorist financing.
Watson has drawn fire for his role in allowing the disclosure of that program. Certainly the Times deserves a black eye for that disclosure, which even its own public editor ended up condemning – admitting, “I haven’t found any evidence in the intervening months that the surveillance program was illegal.”
Maybe Watson was not involved in the Times’s decision to publish the story, although given the extraordinary Treasury effort to persuade the Times not to publish, it would be a surprise if it didn’t ask its general counsel whether it could legally disclose the program — and whether the program it was disclosing was itself legal. If they had a client that made decisions like that without consulting them, most lawyers wouldn’t stick around as general counsel very long.
Most Americans haven’t focused on this breach of security because it the Treasury program was deservedly treated as a nonstory in this country. The Our inattention to the Times’s breach is a mistake on our part. In fact this may be one of the most damaging national security breaches the Times has ever committed, since the European overreaction to the story has crippled a valuable program. For context, I’ve pasted below as an explanation of the matter a longish excerpt from Skating on Stilts, my book on technology and terrorism, due out in June:
It worked. Treasury later credited the program with allowing it to track and capture the mastermind behind the Bali bombings that killed two hundred people. The program was also said to have allowed Treasury to identify and convict a Brooklyn man who had laundered $200,000 for al Qaeda.
Alas, the program was soon to lose much of its value. In June 2006, The New York Times evidently decided that the program must be scandalous; over the vehement objections of the Treasury, it published a lengthy expose about it. The Public Editor of The New York Times would later conclude that the paper had been wrong to compromise the secret program…. But by then it was too late. The New York Times had managed to create a storm over the program in Europe.
…
SWIFT’s American CEO, who had defended the program as necessary to combat terrorism, retired in 2007. He was replaced by a Spaniard. Shortly thereafter, SWIFT announced that it would restructure its data systems to store data on European transactions only in Switzerland.European privacy bureaucrats crowed that they had crippled the American program, at least as far as European terror finance was concerned: “the creation of a new operation centre in Switzerland … means personal data in intra-European transactions will no longer be processed in the US.” The Belgian data protection authority also cited the new Swiss center favorably when it announced in early 2008 that SWIFT actually hadn’t broken Belgian law.
Coincidence? Nope. SWIFT admitted that pressure from the privacy bureaucrats was one of the reasons it adopted the new architecture: “Distributed architecture will improve resilience, add capacity, control long-term average message costs, and alleviate European data protection concerns.” In short, it’s pretty clear that SWIFT was forced to withhold European terrorist financing information from Treasury by European government officials.
…Having made a mess of an effective U.S. terrorism program without substantially serving privacy, some in Brussels tried to minimize the damage. The European Commission negotiated an agreement to give the United States access to intra-European bank transfer data even after the Swiss operations center is set up–but only if Treasury continued to live up to European standards.
Remarkably, even this was too much for the privacy campaigners of Europe. In the first exercise of new authorities granted to it by the Lisbon treaty, the European Parliament rejected the agreement, essentially creating a European safe haven for terrorist finance.
Update: Modest edits shown in strike-through and bold to clarify an ambiguity in the original.
Anon21 says:
I don’t quite understand–is your premise that the program couldn’t have been newsworthy if it was not illegal? Or are you arguing that the harm that disclosure may have done to American interests could only be outweighed by the public’s interest in knowing what its government is up to if the program was illegal?
March 25, 2010, 7:12 pmDG says:
I can not think of a less important or security-sensitive job than general counsel of the Army. Like the service secretary jobs, its sort of light work…
March 25, 2010, 7:17 pmNunzio says:
Maybe Stars and Stripes will start breaking more stories under his watch
March 25, 2010, 7:45 pmElliot says:
It sounds like this guy helped the terrorists. I’d oppose having him in any government position.
March 25, 2010, 7:53 pmEvilDave says:
You forget during the Bu$Hitler administration “helping the terrorists” was considered a good thing ™.
March 25, 2010, 7:56 pmAnon21 says:
Do you ever wonder if you’re a caricature of yourself?
March 25, 2010, 7:57 pmDavid Schwartz says:
So what was the failing exactly? Was it:
1) Watson should have advised The Times that publishing the article was illegal?
2) Watson should have advised The Times to correct legal errors in the story?
3) Watson should have advised The Times that the story wasn’t newsworthy?
I don’t understand what the criticism is. Surely you don’t think Mr. Watson made the business decision of whether the national security risk justified the newsworthiness, do you? And is there any reason to think Mr. Watson had significant input into the assessment of newsworthiness?
Sure, if The Times made a legal error in the text of a major story they likely ran by their counsel, that would be something. The same is true if they broke the law in publishing the story. But since it seems neither of these are true, what exactly do you think Mr. Watson did wrong? Failed to convince them not to publish the story even though it was perfectly legal to do so? Isn’t that fundamentally not a legal decision?
March 25, 2010, 8:05 pmAnonsters says:
He signed off on the legality of publishing a story that Stewart Baker thought should not have been published.
Ergo, boo.
March 25, 2010, 8:09 pmEH says:
No, not certainly. Calame was crying crocodile tears to assuage the hawks.
March 25, 2010, 8:11 pmanon1234 says:
It’s sad that a coward like Stewart Baker considers himself an expert in national security.
March 25, 2010, 8:16 pmtvk says:
Wait, it seems this was clearly newsworthy and consequential, in that the Europeans basically stopped this program because of the publicity. Would your opinion on the propriety of running the story be the same if, after exposure, the program was stopped after a storm of public protest in the U.S. (assuming it remained legal)?
If you opinion changes depending on whether the protest comes from Europe or the U.S., then your position basically boils down to that the NYT should consider only U.S. national interests and U.S. public reactions. That seems an awfully parochial point of view.
March 25, 2010, 8:20 pmAnonsters says:
On the other hand, I don’t think that was called for. Even I have a modicum of civility left. Granted, a very wee modicum, but…
March 25, 2010, 8:24 pmfrankcross says:
Are we back to blaming lawyers for the actions of their clients? Now, outside litigation, when we have no idea what advice he gave the client?
March 25, 2010, 8:38 pmElliot says:
Actually we are blaming the general counsel of the NYT for that firm’s assistance to terrorists.
March 25, 2010, 8:41 pmAnonsters says:
Apparently not, Anon.
March 25, 2010, 8:44 pmDavid Schwartz says:
Exactly. Presumably, the point of making this whole argument is that we’re supposed to reach some sort of conclusion about Mr. Watson’s suitability. But it seems impossible to do that given that no *legal* failure was identified.
Solomon Watson was general counsel of The Times when they made a decision that was, at least arguably, very bad for our national security. No *legal* errors were made in the process and there’s no evidence Watson gave erroneous legal advice to The Times.
So …. what? So nothing.
March 25, 2010, 8:53 pmMike says:
No one is suggesting a lynching. Some of us just think that a person who helped terrorists doesn’t deserve to work for the United States Government – especially the Department of the Army.
March 25, 2010, 8:54 pmFormer Army MP says:
Let’s see…
black guy, Howard U undergrad, Harvard law, NAACP awards, NYT GC…neither the media nor the Obama will allow anything bad to be said about him
wait…
army vet…
and was in vietnam, killing commies for no reason other than evil GOP evil…
looks like IV may get the shaft on this one. No appointment for him.
March 25, 2010, 8:56 pmAnonsters says:
Or maybe he was secretly aiding Charlie while in Vietnam! It fits his profile of helping the terrorists!
Eleventy!
March 25, 2010, 8:59 pmDavid Schwartz says:
How did he help terrorists though? By not lying to his client and telling them it was illegal to publish the story? Seriously — what precisely is it being alleged that he did that he shouldn’t or didn’t do that he should have?
March 25, 2010, 9:00 pmdeenk says:
Or maybe he was secretly aiding Charlie while in Vietnam! It fits his profile of helping the terrorists!
March 25, 2010, 9:14 pmbyomtov says:
Actually we are blaming the general counsel of the NYT for that firm’s assistance to terrorists.
You’re leaving people out. What about the printers, and the paper carriers, and the newstand owners?
March 25, 2010, 9:24 pmWINDANSEA says:
Breitbart is offering $10,000, put up or shut up libs
March 25, 2010, 9:26 pmElliot says:
Byomtov: “You’re leaving people out. What about the printers, and the paper carriers, and the newstand owners?”
No. I only include the managers, editors, and writers whose scope of responsibility covers such stories.
March 25, 2010, 9:29 pmtde says:
Translation, I have absolutely no knowledge of whether or not the general counsel was consulted but I am not going to let that slow me down.
You, Sir, are hacktastic.
March 25, 2010, 9:32 pmAnon21 says:
My, that is certainly somehow related to the subject of this post.
March 25, 2010, 9:32 pmAnonymous says:
Now that I think about it, I don’t think ANYONE has offered ANY evidence that Watson was not a VC-sympathizing (the bad VC, not this blog!) treasonous librul during Vietnam! I’m not saying he was a filthy traitor, just that there is no evidence to the contrary.
[Where's Sarcastro when you need him?]
March 25, 2010, 9:36 pmbyomtov says:
Elliot,
No. I only include the managers, editors, and writers whose scope of responsibility covers such stories.
But Watson was none of these.
Even according to the overwrought Mr. Baker’s assumptions,
Maybe Watson was not involved in the Times’s decision to publish the story, although given the extraordinary Treasury effort to persuade the Times not to publish, it would be a surprise if it didn’t ask its general counsel whether it could legally disclose the program — and whether the program it was disclosing was itself legal.
Watson was only asked about legal issues, just as a printer might be asked about technical issues related to getting the paper printed.
March 25, 2010, 9:48 pmArthur Kirkland says:
I don’t know whether it has merit, but a case against this guy has to be better than the argument that other lawyers were siding with terrorists when they vindicated the Constitution by opposing overreaching government types regarding habeus corpus and similar issues.
I guess this is progress.
March 25, 2010, 9:56 pmTatil says:
Are those who decided for us that this program was legal the same set who does not think shackling somebody with hands above head for days at a time and water boarding is not torture, hence legal?
Besides, unless we are asking Times not to have any customers outside the US, it would be too much to ask them to only consider the interests of the US government. Otherwise, how can you expect US media to be unbiased?
March 25, 2010, 9:56 pmorca says:
The Wall Street Journal ran a story on this government program on the same day the Times story ran.
March 25, 2010, 10:04 pmWINDANSEA says:
don’t worry, I’m sure some imaginary racism is coming soon.
March 25, 2010, 10:08 pmElliot says:
Watson was Senior Vice President and Senior Legal Officer of the NYT.
March 25, 2010, 10:16 pmGuy says:
Yay! More equivocation by disliking someone for being “too liberal” (or having suspiciously liberal ties) but voicing your complaint in such a way that a connection is drawn in the listener’s mind to being a terrorist sympathizer, all while maintaining plausible deniability. Is it circa 2005 again?
March 25, 2010, 10:25 pmSteve says:
I didn’t agree with the decision to disclose this program at the time and I still don’t. But I don’t see a plausible reason to think that the general counsel, even if we accept the speculation that he was probably consulted, would have had anything to do with the editorial decision whatsoever.
March 25, 2010, 10:40 pmMnZ says:
No Tatil. The people who decided who this program was legal were the people who realized that terrorist shouldn’t have a greater right to privacy than tax cheats. It was hilarious to watch psuedo-civil libertarians get up in arms about the constitutional right to privacy in financial transactions. (So, the IRS is unconstitutional?) Moreover, the NYTs doesn’t have free reign just because it has customers outside the US. Spies with press credentials are still spies.
However, in the end, I agree with commenters who don’t see that the NYT general counsel did anything wrong. It would be legitimate to ask Schoenfeld if he thought that people had a right to privacy in financial transactions during his confirmation. He probably would say no. For all we know, Schoenfeld could have been telling Bill Keller and the NYT reporters that they were complete morons for thinking that the SWIFT program was illegal.
March 25, 2010, 10:57 pmWaitWhat? says:
Anon21 and others beat me to it. The press is supposed to ask its lawyers about the legality of the government activity on which it is reporting? With the implication that a surveillance program is not newsworthy as long as it’s legal?
March 25, 2010, 11:05 pmTGGP says:
Deserves a black eye for reporting the news? What a world, what a world.
March 25, 2010, 11:12 pmMnZ says:
So, all spies should get press credentials…
March 25, 2010, 11:14 pmStewart Baker says:
Two quick responses –
1. Whether Watson knew about these decisions was put into question by Sen. McCain, who thought it strange that he wouldn’t be involved given the stakes. My point was to reinforce his doubts, without pretending to have conclusive evidence. It is very strange, and a little convenient.
2. I am struck dumb by tvk’s argument that the Times is justified in publishing classified information if foreigners find the information newsworthy. I’m sure the date of the Normandy invasion would have been newsworthy in Berlin, but I still think that publishing it would have been treason. Maybe that makes me “parochial.” If so, well, fine.
March 25, 2010, 11:15 pmMnZ says:
Make that Watson…not Schoenfeld.
March 25, 2010, 11:19 pmMark Field says:
Since when is The Weekly Standard a legitimate news source for a post here?
March 25, 2010, 11:28 pmMark Field says:
Ok, now I’m going to be rude. Did you actually read what tvk wrote? S/he said nothing about the classified information issue, but ONLY addressed the newsworthiness of the story. On that limited issue, the point is well-taken.
March 25, 2010, 11:31 pmSteve says:
After seeing that Watson flatly denied being involved in the decision, under oath no less, I find the dishonesty of the statement “Watson has drawn fire for his role in allowing the disclosure of that program” to be more than a little breathtaking. Unless there’s some basis to believe he committed perjury – and “gee, that surprises me” is not a basis, in my view – then there’s no “role” for him to draw fire for, period.
Let’s break down the OP’s speculation. The first suggestion is that surely the NYT would have asked their lawyer if the SWIFT program was legal. Uh, no. That’s the sort of question you put to outside legal experts, as in, people you can actually quote.
The other suggestion is that surely the NYT would have asked their lawyer if they could legally run the story. Well, considering this is America and there is virtually nothing that it is illegal for a newspaper to print, I can’t really agree with that one. Media lawyers get asked to weigh in on issues of defamation all the time, but criminal liability? Just because Alberto Gonzales may think it’s perfectly reasonable to prosecute a newspaper doesn’t mean actual newspapers spend a lot of time sweating bullets over the issue.
This was an editorial decision, not a legal one, and I see no reason to doubt the sworn testimony that the general counsel was not involved.
March 25, 2010, 11:43 pmneimoller says:
HULLLO, Godwin! How’ve you been? Lindgren is facing serious competition when it comes to godwinning one’s own thread.
March 26, 2010, 12:39 amleo marvin says:
Don’t forget the subscribers. (Certainly, at the very least, those who read Krugman, Rich and Dowd.)
March 26, 2010, 1:02 amMatej says:
Inasmuch as Volokh Conspiracy also has a global audience, perhaps a brief comment on the original post’s perception of the European reaction is also in order.
Firstly, I can sort of live with the characterization of the Article 29 Working Party as “European privacy bureaucrats”, although the slightly pejorative denomination misses the point that, at least in most of the EU Member States, information commissioners or privacy ombudsmen are autonomous, institutionally distinct from the government structures and typically in opposition to the core national bureaucracies (that, in part, is their purpose).
Secondly, to say that the Working Party “crowed that they had crippled the American program” is a liberal (if you forgive the pun) reading of what that press release stated (btw, omit the final dot in the linked address to access the document), but to take from the cited passage on the SWIFT website that it “admitted that pressure from the privacy bureaucrats was one of the reasons it adopted the new architecture” is rather amusing and also misses the general point.
The point is that the common sentiment in Europe, the sensibility of Member State nationals, is one that values privacy – including the protection of personal data – and is distrustful of any invasion of this privacy, either by their own governments or (and all the more so) by external actors like the US. One can have a debate on the different levels of data protection laws in Europe and the States, and how to reconcile the tensions. But to so easily ignore the way such privacy concerns (as part and parcel of fundamental rights of individuals) are formed and to portray them as mere bureaucratic whims is rather misplaced and makes the original poster’s argument, or indeed understanding of the European side of things, largely unconvincing.
March 26, 2010, 4:18 ampublic_defender says:
Do we know what his advice was as to either the legality of the Swift program or of publishing it? Clients don’t always do what their lawyers advise. Clients are our clients, not our puppets.
But as to the NYT’s decision to publish, I think it’s much more reasonable in context. Whom could they have trusted about the dangers? The same Bushies that had recently led them to the Judith Miller WMD debacle? Yeah, right. The Swift disclosures were one result of the Bush Administrations refusal to distinguish between its political interests and the country’s national security interests.
Remember the “Cry Wolf” story we read as a kid?
Given that Bush Administration brought the lack of trust on itself, I guess you could say that the Bush Administration was helping terrorists.
March 26, 2010, 5:57 amInstapundit » Blog Archive » ADMINISTRATION’S NOMINEE TO BE GENERAL COUNSEL OF THE ARMY involved in “one of the most damaging nat… says:
[...] ADMINISTRATION’S NOMINEE TO BE GENERAL COUNSEL OF THE ARMY involved in “one of the most damaging national security breaches the Times has ever committed?” [...]
March 26, 2010, 8:23 amTK75 says:
So Obama sure seems to be nominating a lot of black people, definitely beyond their share of the American population.
If the media and liberal elites can criticize every Republican for not nomimating enough minorities, why doesn’t the reverse apply? Surely Obama has passed over some very deserving potential candidates of pallor?
Oh yeah, that street only runs in 1 direction…
March 26, 2010, 9:01 amParatrooperJJ says:
He aided in the commission of a felony which caused grave harm to the US. He has no business being a DOD employee.
March 26, 2010, 9:17 amGM Roper says:
Lets put this in context: The many on the left argued that Yoo should be horse-whipped because he provided legal advice on an issue. Here, many of those same left leaning folk are arguing that Watson IV should be given a pass because he provided legal advice on an issue.
Please inform this right leaning one making this comment how these two are not hypocritical in essence. I’d really like to know and be specific please. Hyperbole just won’t cut it.
March 26, 2010, 9:22 amJoel says:
Guys, the argument again Watson is not legal, it’s political. In the same way, the Times’ decision to run the article was not legal, but political. They chose to publish the story not because it was technically legal to do so, but because it was damaging to the Bush administration and the ‘War on Terror’ they so derided.
Who cares if disclosing the program was legal (and many of you are assuming it was – that’s not clear to me)? The Times, and Watson by professional association, put their own political interests ahead of clear national security interests on a rather flimsy margin of ‘legality.’ Sure, they scored points against Bush and won ‘friends’ in Europe, but at what cost?
If I’m hiring a guy to be legal counsel for the Army, I want someone who would have put national security interests above political muckraking. And by that criterion, Watson fails.
March 26, 2010, 9:43 amsetnaffa says:
Apparently, BDS is still in force because Obama is continuing all of the Bush sins, yet with no corresponding anguish from the leftlings…
March 26, 2010, 9:47 amShelbyC says:
Down with the NYT1.
But seriously, it’s not clear to me what role the General Counsel of a paper would have in a decision to publish such information beyond advise about what is legal. Is there any evidence that he gave bad legal advise?
And the date of D-Day would have been newsworthy here as well. It’s hard to see how such a publication would be treason.
March 26, 2010, 9:57 amBob from Ohio says:
Huh?
Knowing the exact date of an attack is priceless info for a defender.
March 26, 2010, 10:24 amBob from Ohio says:
Since we are talking about aiding the enemy:
The pictures from ACLU PIs just happened to appear in a terrorist’s cell. And the “top notch” counsel had nothing to do with it.
March 26, 2010, 10:32 amMark Field says:
It’s not hypocritical because you’ve missed the point. There’s no evidence here that Watson had any role in this decision at all. It’s just speculation that he did.
Even if he did provide legal advice, we don’t know what it was. Whether or not he falls into the Yoo category depends on the details, and we don’t know them.
March 26, 2010, 10:42 amElliot says:
Subscribers’ scope of responsibility does not include publishing. This is not a function of the fetaures of the paper they read.
March 26, 2010, 10:53 amShelbyC says:
Newspapers publish lots of info that’s helpful to the enemy. If you don’t want the enemy to know something, you’re best bet it to prevent the guys who are in the business of publishing information from finding out about it. Which brings up another point. Maybe the focus here should be on finding out who leaked the info to the times, no?
March 26, 2010, 10:54 amElliot says:
The poor judgement shown by the NYT in publishing the article is a failure of NYT senior management. Watson was part of senior management as Senior Vice President and Chief Legal Officer. He therefore lacks the judgement necessary to hold responsibible positions in the defense department.
March 26, 2010, 11:07 amCan't find a good name says:
You mean “undeservedly”, not “deservedly”, right?
March 26, 2010, 11:56 amgeokstr says:
Of course. It even has a contemporary equivalent, as we see from nearly everyone on the left nearly every day in nearly every story in nearly every media – “Cry Racist”. With even less justification than the little kid’s lies in the old version.
March 26, 2010, 12:06 pmTerrorist finance protector appointed Army counsel « Internet Scofflaw says:
[...] finance protector appointed Army counsel Another dreadful appointment: Gabriel Schoenfeld points out in the Weekly Standard that the administration’s nominee to be [...]
March 26, 2010, 12:17 pmMartinned says:
This is always an interesting conversation to have on VC. So far, I’ve always found my interlocutors unwilling to accept any privacy protection for any information that is known by someone other than yourself (or possibly your spouse). Since your criminal record is part of the court records, etc., that can’t possibly be private. Similarly, because the bank knows how much money you have in the bank, why shouldn’t they share that information with whomever, unless their contract with you explicitly forbids this? Maybe we’ll have better luck this time.
March 26, 2010, 12:35 pmRicardo says:
Nobody claims the photos “just happened” to get there. They were put there by the military lawyers who were assigned to the detainees. Since these leaks are short on specifics, I’ll add a few observations:
1. As Patrick Fitzgerald himself would tell you, identifying a CIA officer is not necessarily a crime. He never prosecuted Richard Armitage for revealing Valerie Plame’s identity as a CIA officer.
March 26, 2010, 1:18 pm2. If a bunch of PIs could track down these CIA officers, arguably their identities were compromised already.
3. If the identities of the CIA officers were so critical to national security, why did they reveal their faces to the detainees in the first place? Wear a ski mask.
4. Since, as per #3, detainees had already seen the faces of these CIA officers during their interrogations, it’s not clear why showing them pictures of exactly those same faces constitutes new information that is a threat to national security. Granted, if the photos reveal a home address or a license plate number, that’s a big deal. But if they don’t contain any new information about the identities of the CIA officers, it’s not clear there is any crime here.
CrazyTrain says:
Even better is that Instapundit now links to this post for the assertion that he was involved. Go Glenn Reynolds!!! Always so honest. Stewart Baker must be proud to be a cog in the right wing echo chamber. (I suppose the next step is the Fox News story? Or the WSJ editorial?)
March 26, 2010, 1:20 pmShelbyC says:
IIRC, martined, you took a much broader position last time, no? Well I agree that, say, banks should be free to share information unless they’ve contracted not to, you took the position that no one should be free to divulge certain information, correct? So that, if I found out how much money you had in the bank, you could prevent me from divulging that info no matter how I found out about it, no?
March 26, 2010, 1:36 pmElliot says:
Senior management and members of the management executive committee are responsible for everything a firm publishes.
March 26, 2010, 1:40 pmStewart Baker says:
Thanks to Eugene Volokh and “Can’t find a good name” for persuading me that my original post was ambiguous and needed editing. Fixed now.
March 26, 2010, 1:44 pmgeokstr says:
Really? Could we see a cite or site for that, please? Everything I saw said these were put there by the objective, unbiased, apolitical, pure-of-heart “pro bono” lawyers.
Wow, there’s a beaut of a historical revision. You can still see the leftling trolls on conservative sites using the “if they’re willing to out CIA operatives” line against the right.
Yes, or course, let’s make AQ’s job easier by doing it for them.
Uh, maybe they didn’t foresee the day, years later, when US citizens in the guise of objective, unbiased, apolitical, pure-of-heart “pro bono” lawyers for the prisoners would hire PI’s to spread their pictures all over the Muslim world. And who said that their pics were necessarily only critical to “national security”? In a world where those pics could be all over the internet in seconds, don’t you think it might be of some concern for their “personal” security, addresses or not, especially since the stories I read about this detailed in some cases where the pictures were taken? Who needs a home address if you have their picture and where they work?
March 26, 2010, 1:53 pmneymoller says:
the way murdoch is going i’d aim higher. the news team.
March 26, 2010, 1:59 pmMartinned says:
As so often, our previous conversation tended to wander a little bit between me explaining the law here, and me explaining my views regarding the law. Whether you should be able to divulge how much money I have in the bank (or where it came from, etc.) should not depend on how you obtained that information, but it might depend on the purpose for which you seek to divulge this information. (If you’re writing an exposé on how corrupt I am, that’s a different story than you simply posting my bank information online for the heck of it.)
Invasion of privacy is undoubtedly actionable in tort (here), but it is a tort that works against the background of free speech rights as well, meaning that some balancing of interests will have to take place.
In the SWIFT case, the competing interest is not a fundamental right like the right to free speech, but the (US) government’s interest in uncovering terrorists. How one weighs a fundamental right against such an important government interest is a tricky issue, and one that has so far been discussed mostly in legislatures like the European Parliament. I’d rather have them look at it than the courts, although I guess any new SWIFT agreement will inevitably end up in Karlsruhe and Strasbourg eventually. (Under German law you do not need standing to bring a “Verfassungsbeschwerde”, i.e. a claim that a law is unconstitutional. In Strasbourg, you do need standing, but I’m sure the issue will come up there sooner or later.)
March 26, 2010, 2:03 pmFat Man says:
You are all Al-Qaeda sympathizers. Watson and the rest of the wrecking crew at the NYTimes should have been indicted, tried, convicted, and hanged for treason.
March 26, 2010, 2:58 pmTweets that mention The Volokh Conspiracy » Blog Archive » Swift Justice? -- Topsy.com says:
[...] This post was mentioned on Twitter by jzlalib. jzlalib said: Swift Justice? http://bit.ly/dDp0Bx [...]
March 26, 2010, 3:05 pmSarcastro says:
Curses! Foiled by Fat Man‘s telepathy again!
March 26, 2010, 3:11 pmneymoller says:
i wonder why you specify the first three steps when we could just do the fourth. seems like you are just buying time for the enemy. a treasonous act if i’ve ever seen one.
March 26, 2010, 3:22 pmShannon says:
If the Government thinks that the Times violated actual provisions of US law, they are free to prosecute under whatever relevant statutes they think apply.
They haven’t.
“Making it harder for the Government to protect us” is not, by itself, a crime.
If it’s not specifically illegal, you get to do it without interference from the State. Merely uttering the words “national security” does not do away with this fundamental understanding of Western law.
Don’t like that? Then change the laws. But until that happens, doing stuff that isn’t illegal cannot carry a penalty in any free society.
–Shannon
March 26, 2010, 4:28 pmTatil says:
Sure they don’t and I always presume government knows about my transactions if I ever move large amounts of money or to ovearseas, but don’t you think it is a stretch that anybody who has his financial transactions investigated under this program was definitely a terrorist? Do you know how wide a net they cast? This is the same government that created a 500,000 people terrorist watch list, a number that probably does not include many who has the same name as those who are on that list. Are you one of those who deride “big government” at every opportunity unless some unnamed member of government utters the phrase “national security” or are you OK with every kind of unaccountable, secret government programs that spend taxpayer money and spy on its own citizens?
March 26, 2010, 5:01 pmMoneyrunner says:
I note at least one of the VC commentators doesn’t like the attention that an Instapundit link provides. Sort of like getting the front page treatment on the NY Times.
Heh.
March 26, 2010, 5:11 pmElliot says:
Of course it can. It just can’t carry a criminal penalty. We can penalize someone by declining to hire them, giving a poor perfromance review, voting them out of office, refusing tenure, publicly criticizing them, etc.
March 26, 2010, 7:55 pmCrazyTrain says:
Torturing them.
March 26, 2010, 10:12 pmRicardo says:
Happy to oblige. This illustrates the problem of getting all of your news from third-hand sources like the Weekly Standard, WSJ op-eds, and The Corner. Here is the original Washington Post story that contains just about all the public information we have about this case so far:
“It is unclear whether the military lawyers under investigation identified the CIA personnel in the photographs to the al-Qaeda suspects or simply asked the detainees whether they had ever seen them.”
Link
What historical revision? I’m interested in what the law says. I couldn’t care less what a bunch of “leftling [sic]” trolls think. Whatever one thinks about the outing of Valerie Plame personally, it doesn’t appear to have been criminal. Andy McCarthy wrote a lengthy piece explaining why this is the case. Think he’ll do the same in this current case?
The people claiming a violation of the law are certainly doing so. If you don’t think national security was at stake, I assume you agree with me that probably no law was violated.
Yes, I forgot, the detainees all have internet connections in their cells. They check facebook during the day to help pass the time. They even have scanners so they can upload photos into their profiles.
March 26, 2010, 11:35 pmpublic_defender says:
It’s a pretty gross exaggeration to say that the public editor “ended up condemning” the publication. “Condemning”? Actually, in the link you provided, the public editor wrote:
Saying something was a “close call” and that you “don’t think” it should have been published is a huge step away from “condemning” it.
Baker also cuts off the end of one of the public editor’s sentences, but instead of acknowledging the edit, he just inserts a period where the public editor did not.
Baker quoted the public editor as saying:
Actually, the public editor wrote (I supply the emphasis):
The public editor acknowledged that the program could have been illegal under the laws of our allies, but he also stated that he did not know of any legal action there relating to the program. And in a story about actions that involve our allies, that’s a critical difference.
If you’re going to quote the New York Times’ public editor against the paper, do so honestly and accurately.
March 26, 2010, 11:52 pmpublic_defender says:
Baker’s post might also explain why the Bush Administration could not persuade the Times not to publish. Bluntly, it won’t persuade anyone of anything.
If you already agree with his point of view, it will reinforce what you believe. If you don’t, his cavalier approach to the facts (which is on the border between recklessness and dishonesty) will turn you away. It seems so many Bushies have so much contempt for the NYT that they can’t write an argument that would persuade a NYT editor. You don’t think the NYT is worth persuading? Fine. But then don’t complain when you fair to persuade it.
When a newspaper determines that it can’t trust the word of administration officials, it makes it a lot harder for those officials to persuade the paper that publishing a story would really damage US security. That’s especially so when our allies have much stronger protections for privacy and are willing to take greater security risks to protect privacy.
March 27, 2010, 12:21 amShalom Beck says:
The NYT was an egregious violation of the Espionage Act, which prohibits pretty much any unauthorized disclosure of communications intelligence. An Administration with balls would have told them “run this story and we throw you all in jail and RICO the paper to death.”
March 27, 2010, 1:21 pmElliot says:
When the public determines that it can’t trust a firm to refrain from assisting terrorists, it makes it a lot harder for the executives of that firm to persuade the public they really do care about US security.
March 27, 2010, 1:29 pmpublic_defender says:
And that would have guaranteed publication, and probably with a successful First Amendment defense. Every major newspaper would have supported the Times. That would have been an empty, stupid threat.
Name a more trusted newspaper? You may not like it. But it’s still the Gold Standard of American journalism. That’s why it’s such a target of the Right Wing Echo Chamber, of which Baker’s post is an example.
And it’s telling that Baker had to distort the facts to attack the Times.
My guess is that Baker wasn’t being intentionally dishonest. Delusional, maybe. Trapped inside right-wing talking points, probably. But not dishonest, I think.
March 27, 2010, 2:24 pmpublic_defender says:
I also suspect that Baker is embarrassed by the sloppiness of his post. Any honest, competent lawyer would be. But a hack wouldn’t care.
March 27, 2010, 2:29 pmMark Field says:
You’re a better person than I am.
March 27, 2010, 4:28 pmElliot says:
OK.
When the public determines that it can’t trust the Gold Standard of American journalism to refrain from assisting terrorists, it makes it a lot harder for the executives of the Gold Standard of American journalism to persuade the public they really do care about US security
March 27, 2010, 8:40 pmStewart Baker says:
I think public defender and Mark Field are bringing a reply-brief sensibility to blog postings they disagree with. You’d think I’d filed a brief mischaracterizing some obscure district court decision that isn’t readily available to the court. But in fact the whole thing is right there in the link. I think that when a NYT employee who has already supported his employer in print changes his mind and says the NYT should not have reported a story, it’s fair to say he condemned the publication. But that’s what links are for — reading to get the rest of the story. The same is true for cutting the quote. The author goes on for paragraphs about both US law and European law without concluding that EU law was violated, and in fact there’s grave doubt on that score; plus, it’s not especially relevant, since using “violation of foreign law” to justify exposure of US classified programs would be utterly irresponsible, given that most of them violate foreign laws against, well, things like espionage. I could have gone into all that, I suppose, but, again, that’s what links are for.
March 27, 2010, 8:57 pmpublic_defender says:
I disagree that “condemning” is synonymous with “criticizing.” If another attorney comes into my office and says, “I think that was a close call, but I don’t think would have filed that lawsuit,” I would take that as a very mild criticism, not a condemnation. And the context of an article written by someone whom the NYT pays specifically to criticize them, the distinction should be even more clear. The Public Editor criticizes the paper all the time. That’s his job.
On another point, citation mitigates but does not cure, a misquote. If I tell a court that a case stands for X, even when it does not, the citation does not cure my misrepresentation. The same is true for cropping a quote to omit important qualifying information, especially if I did so without signaling the crop.
You also don’t help your point by arguing that it’s not “especially relevant” whether the Bush Administration was violating the banking privacy laws of our allies (which you lump together with all “foreign law.” You may not care, but the person you quoted cared enough to raise that issue. Others outside of the Right-Wing-Talk-Bubble do, too. It shows the cavalier attitude that helped get us where we are.
March 28, 2010, 5:05 amMark Field says:
I have no idea what this means. On the assumption you’re trying to defend your behavior, I’ll make 2 points:
1. If you want your citations to be credible, don’t cite to The Weekly Standard. Few will even bother to click the link; fewer still will accept any statement made by that source as true or even made in good faith.
2. Don’t mis-state what the commenters have said. Your response to tvk’s comment was wrong and you should apologize for it.
March 28, 2010, 11:05 ampublic_defender says:
The first four words of this response appear to be more accurate than anything else you have written here. Maybe I’m “parochial,” but I think that we should treat our allies better than our enemies.
March 28, 2010, 12:18 pmpublic_defender says:
But, using Baker-style quotations, I think it’s telling that he admits:
Oops. I almost forgot to include the link to the original source. That makes any unfair quoting fair.
March 28, 2010, 12:25 pmpublic_defender says:
First, I apologize for the first sentence of my 12:18 comment. That was just juvenile.
But for a serious note, Baker, a former Bush Administration official, equates informing our allies that the US Government is violating their law with helping Nazi Germany fight off the D-Day invasion. Geez. Get some perspective. I can see why the NYT wouldn’t have taken warnings from the Bushies seriously. Between the hyperbole and the dishonest or delusional interpretations of the facts, they just aren’t persuasive to anyone who doesn’t live inside Rupert Murdoch’s “news” bubble.
March 28, 2010, 12:55 pmDavid Schwartz says:
A policeman trying to stop a robber and a robber trying to evade the police may both squeeze the trigger. It hardly follows that their actions are morally equivalent.
The allegation against Yoo is that the CIA wanted to do something that everyone knows is illegal. Yoo is accused of crafting a legal opinion that they could rely on to do something illegal. That is, Yoo is accused of facilitating illegal action. (It is much the same as a lawyer who provides his client with a latter saying that it is the lawyer’s opinion that he is not required to pay taxes because the 16th amendment wasn’t properly ratified so that his client can rely on that letter “in good faith” to avoid a subsequent conviction for knowingly failing to comply with a legal duty.)
We know what Yoo wrote, since we have his writings.
In contrast, the accusation against Watson is that he allowed his client to do something legal but unwise. There is no evidence that the Times made any legal errors. We have no idea what specifically Watson said on the subject, and he has denied under oath that he had any role in the decision.
Yes, you can describe these two very different courses of conduct as “providing legal advice”. The difference is that in one case the legal advice was correct and in the other case, it was deliberately biased to provide the ability to rely on it in good faith while engaging in conduct that is illegal.
March 28, 2010, 8:02 pmElliot says:
Sounds like legal advice that works against terrorists is bad, while legal advice that helps them is good.
March 28, 2010, 9:34 pmWatcher of Weasels » Watcher Council Submissions March 29, 2010 says:
[...] Baker/ The Volokh Conspiracy – Swift Justice Submitted by The [...]
March 29, 2010, 8:55 ampublic_defender says:
Exactly! That’s one reason that Yoo’s advice to give our enemies a weapon to use against us (our willingness to torture) was so bad. He helped our enemies, but at least he gave a testosterone boost to himself, his bosses, and the Murdoch media bubble.
March 29, 2010, 1:15 pmBookworm Room » What I’m reading and what you should read says:
[...] Baker/ The Volokh Conspiracy – Swift Justice Submitted by The [...]
April 1, 2010, 10:43 pmWatcher of Weasels » The Council has Spoken 040210 says:
[...] place with 1 2/3 points – Stewart Baker/ The Volokh Conspiracy – Swift Justice Submitted by The [...]
April 2, 2010, 8:53 amBookworm Room » Last week’s Watcher’s Council winners says:
[...] place with 1 2/3 points – Stewart Baker/ The Volokh Conspiracy – Swift Justice Submitted by The [...]
April 5, 2010, 7:38 pmWatcher’s Council Results – Worn Out | Mere Rhetoric says:
[...] the winning and runner up non-Council posts came from The Doctor Is In and Volokh respectively. Excerpt: “The dark night of the soul strips away your props and annihilates all [...]
May 2, 2010, 2:14 pm