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July 14, 2006
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Is The New York Times A Pack Of Treason Weasels?
New York Times editor Bill Keller is puzzled as to why the article revealing the existence of the Society for Worldwide Interbank Financial Telecommunication, or SWIFT program, is creating such a firestorm. Yes, checking banking records to track terrorists is an obvious strategy, and yes the administration even announced its intention to do so after 9/11 (a program that the Times editorial board even advocated immediately after the WTC attacks). But the operational details have been unknown until now, and even the name of the program had been kept under wraps. The CIA has proven yet again that is is a keeper of secrets that can keep no secrets: Coalition of the Willing members and other international partners in the War on Terror must be wondering what details of cooperation with the United States won't likewise end up on the front page of the New York Times.
Bill Keller's own argument that these revelations are no big deal because the administration itself 'trumpeted' its existence is refuted by the article in question: it mentions that Uzair Paracha was convicted in 2005 due to an investigation involving SWIFT, and that it was also instrumental in capturing Riduan Isamuddin, better known as Hambali. Yeah, tracking financial records around the world is an obvious way to find terrorists, but apparently Paracha and Hambali didn't know enough details to avoid getting caught. As Hugh Hewitt has suggested, al-Qaeda can now reverse engineer Hambali's transactions to find out where they went wrong.
The government argued that "the anti-terror program would no longer be effective if it became known, because international bankers would be unwilling to cooperate and terrorists would find other ways to move money," and indeed, the New York Times may well have taken away a proven and effective tool in the War on Terror, a war that is primarily an intelligence-driven enterprise.
The rule in journalism now is that 'information wants to be free,' and if secrets can make it past the goalie it is a fair score (and the Pulitzer is the trophy). This however is an abuse of journalistic responsibility, and violates the balancing test that says if the harm of revealing secrets outweighs the public's interest in knowing the secrets, the press should voluntarily keep it under wraps.
Thus, what is so galling about the SWIFT revelation is that it was so completely gratuitous.
Lawbreaking, abuse of the legal process, incompetence and so forth are all fair game for reporting, in that abuses are detrimental to national security, and exposing these weaknesses actually strengthens the war effort. This breaks down however, when there are no abuses or illegalities, and disclosure does nothing to improve or strengthen national security, and in fact harms it.
Notice what the Times article does not mention. Unlike the NSA wiretap story it has no allegations of illegality. This is because the SWIFT program is perfectly legal: banking is probably the most heavily regulated industry in the United States, and the War on Drugs has taught us that there is virtually no expectation of privacy whatsoever in banking records vis-a-vis the government. The Supreme Court in United States v. Miller, 425 U.S. 435 (1976) held that there are no Fourth Amendment rights nor privacy rights in bank records, and there are hundreds of prosecutions every year for structuring and other forms of cyberlaundering where the government issues nothing more than a subpoena to obtain bank records. Nor has the Times asserted that there were any abuses of the SWIFT program.
The tepid justification the Times has offered is that the need to know about this program and the potential abuses therein is somehow in the 'public interest.' Well guess what, every single government program whether secret or not is a possible tool for abuse, and thus every conceivable government program and secret is a justified target for exposure according to the Times' self-serving standards.
The government has lived up to its end of the bargain by refraining from prosecuting journalists and thus not chilling their free speech. Journalists have not reciprocated, but this is not entirely their fault. The government is partly to blame for this, because the press and the Department of Justice have reached an accord whereby once secrets get out into the public, there will be no prosecution. There was no prosecution when the Chicago Tribune revealed that intelligence had broken the Japanese codes during World War II (leading to the turning point victory at Midway). Fortunately, the Japanese were not reading open source intelligence, and the government did not prosecute in order to keep the revelations from getting overseas.
The New York Times learned firsthand that there is no penalty for reporting national security secrets when it published the Pentagon Papers. In that case, New York Times. v. U.S., 403 U.S. 713 (1971), Supreme Court Justice Byron White
specifically cited section 793(e) of 18 U.S.C., on unauthorized possession of a document relating to the national defense, as well as sections 797 (graphical representations of military installations) and 798 (code and cryptographic information), and wrote: I would have no difficulty in sustaining convictions under these sections on facts that would not justify the imposition of a prior restraint. [emphasis added].
The Justice Department did not take the step of prosecuting Daniel Ellsberg, because of the scandal surrounding the break-in of his psychiatrist's office, and so fate helped set today's hand-off policy regarding journalist prosecutions.
There are no such security or political issues in the SWIFT case, and this provides the government with a golden opportunity to put a check on a grossly irresponsible press that has proven itself incapable of policing itself. The Department of Justice needs to empanel a Grand Jury and haul the reporters before them to find out who leaked the details of this program to the press. Journalists have absolutely no immunity here - they can sit in jail for months for contempt of court as did Judith Miller until they give up the goods, and then DoJ can prosecute the New York Times itself. If they will not act responsibly, responsibility must be thrust upon them. The gravity of the War on Terror compels it.
In the meantime, we can forgive the poor Times reader if they can no longer figure out if leaks are good or bad. The SWIFT leak is the obverse of the hysterial reaction to the Plame leaks, a sort of ho-hum business-as-usual exposure according to the Times, with the salient difference that the SWIFT case actually impinges on national security. Which is why the liberal Times could care less.
Posted by Ken McCracken · 27 June 2006 10:25 AM
"the anti-terror program would no longer be effective if it became known, because international bankers would be unwilling to cooperate and terrorists would find other ways to move money"
I find it almost impossible to believe the editors of the New York Times did not understand the logic of this statement, but assuming they didn't it needs some explaining.
First, Society for Worldwide Interbank Financial Telecommunication (SWIFT) provides messaging services. It is not a bank or financial institution subject to banking regulation. Second, SWIFT is based in Belgium and, except for branches in the US, is not subject to US laws or courts. This renders the arguments about Congressional and Judicial review pretty much, but not completely, moot. The Bush administration used an administrative Subpoena to obtain records officially through the US branches. But being foreign based, this also means that the management of SWIFT could cut off, if they felt it might endanger their business relationships, information of any transaction not originating or terminating in the US. Of course, by law, these are the only transactions that the CIA could take interest in. So the arrangement was a cooperative agreement where "mum" was the word. The CIA got access to foreign transactions and SWIFT had their business relationships secured.
The notion of secure relationships should be a simple matter for a newspaper that give confidentiality to sources who might otherwise be uncooperative, so the editors of the Times are either stupid or lying, or perhaps they think we are stupid.
Posted by: Neo at June 27, 2006 11:49 AM
Well it will be very interesting then to see what SWIFT does about this. Are they going to terminate any relationships with the US government?
Or is any such relationship now rendered useless and moot even if SWIFT continues to cooperate?
Posted by: Ken McCracken at June 27, 2006 12:20 PM
go bill. he's our ann coulter. getting righties all riled up till they're ready to explode. another ho hum republican "outrage". no one except right wing blogger geeks have even heard this story or care
Posted by: lester at June 27, 2006 01:39 PM
Just keep telling yourself that Lester.
Posted by: Ken McCracken at June 27, 2006 01:44 PM
Because right wing blogger types are the only ones reading the front page of the new york times. And right wing bloggers or right wing people in general run the NYT. LOL, tool.
Posted by: christian at June 27, 2006 04:13 PM
if michelle malkin cares about it, it ain't important
Posted by: lester at June 27, 2006 04:20 PM
Ya right, lester! That is the most stupid idiotic statement. You obviously don't comprehend how important because you are obviously playing partisan politics. This is not the time for that.
Posted by: Zsa Zsa at June 27, 2006 08:23 PM
I wonder how many will die thanks to the NYT/LAT arrogance and stupidity?
Unfortunately for them they may find that their actions do have consequence, and in a way they will not like.
Seeing as they are both papers of cities that have been and are major targets of the people SWIFT was tracking they may find that some of the people who do die are their own friends and loved ones. I do not want to hear they crying about it if that occurs for they helped facilitate it.
Posted by: Nahanni at June 27, 2006 08:37 PM
the israelis look more capable than the americans
Posted by: reese at June 27, 2006 11:14 PM
the israelis look more capable than the americans
Posted by: reese at June 27, 2006 11:14 PM
"lester, the intellectual's molester."
For those of you that remember the magazine(Larry Flynt). Can't remember the name of it.
Posted by: Eneils Bailey at June 28, 2006 07:23 AM
Eneils, that's why we love the left: The consistancy.
If it tells a story they like(wire taps, abu gharab, alleged gitmo torture) then facts and morals aren't needed. The truth must be made free for the people!
If it tells a story that they don't like (Kos' financial dealings, GWOT victories, drunk Kennedys, Cpl Belile "Hadji Girl" song) then it's a Republican smear that doesn't matter or it has to be prosecuted for not being PC.
And somewhere down the line we're all promised a plan that is a "better way" despite the fact that 6 years into a GWB hate filled 2nd term one has yet to surface.
Too bad the Independants don't have better funding, at least they believe in something.
Posted by: Rob B. at June 28, 2006 09:20 AM
Posted by: Eneils Bailey at June 28, 2006 12:53 PM
eneils - are you talking about Hustler? Honestly, the two best poits of view I've heard on this were from Michael Sheuer, formerly "anonymous" if you remember "imperial hubris" and Larry Johnson , another former CIA guy who has a blog called no quarter. and, I believe, a hairpiece. But I cna't prove it. Anyway, sheuer was against the leak because he felt it would make it harder for other countries to help us because they would be afraid of getting exposed in the press. This is actually the same argument the CIA used in describing the fall out from Plame gate. johnson said the whole thing was no big deal. So i don't know exactly what to believe. Other than, as keller pointed out, the New York Timesis in New York so why would they want to help another terror attack happen?
Also, Ron Suskind on NPR today had a good point: We have two massive largely unprotected borders. this is what I kept thinking during the NSA thing. Why would any terrorist bother to call anyoine in the US when they could easily just walk in at their leisure? What do we want to be able to say "oh New York has blown up, but at least they didn't organize it by calling each other"
Posted by: lester at June 28, 2006 05:38 PM
The entire point of it is that the outrage for outing Valerie Plame was partisan politics, and so is this. Joe Wilson engaged in partisan politics. So did Scooter Libby.
And did any of these make us any safer?
So at the end of all the outrage by Democrats over the WOT, 9-11 and the Commission Report, the CIA-FBI-DOD needing reorganized to track down terrorists, GITMO, and the Patriot Act, the Democratic Party has completely and utterly failed to provide any solutions to keeping us safer and has used partisan politics to attack the President at every turn as he tries to do so. I want to hear a coherent plan by the Democrats on Iraq (that almost unanimously the voted for), the CIA reorg and cleaning up the CIA leak problem, what to do with detainees at GITMO, how to "fix" the Patriot Act to protect civil liberties, etc. All I hear is Cut and Run, protect civil liberties, and let the GITMO detainees have their day in the Liberal Circuit Courts so that they can be released and returned to the battlefield.
Let's remember why 9-11 happened. Lack of cooperation between the intelligence gathering agencies due to consistent arguments over jurisdiction and over a continual power struggle that prevents the CIA, FBI, NSA, and DOD from sharing power. This is big government at its worst. And the continual leak process is not about protecting us. It is about partisan politics to protect the budgets of these massive agencies. It is about somebody's vendetta against somebody else or the Washington Leadership because they didn't get a promotion or their budget got slashed.
So again, how does the continual leaking promote cooperation of not just our intragovernmental agencies, but foreign countries and financial institutions? How does it promote national security? How does it get us out of Iraq quicker? Or help us capture Osama Bin Laden that John Kerry was so confident was more important than Iraq? The fact is that the money trail and cell phone calls is a critical part of capturing Osama that the Democrats keeps saying was more important than Iraq and Saddam. So how the hell do they justify taking away tools to end the War on Terror sooner? How does GITMO and the detainees' civil liberties outweigh national security and capturing Bin Laden?
In partisan politics, it does not matter. All that matters is righting the wrong of 2000 and the hanging chads. Beat Bush at all costs. Whatever it takes. Leaking at the CIA. Code Pink. Cindy Sheehan. NYT stories. Joe Wilson's lies. Attacking Rush Limbaugh. Smashing into Capital barricades while hammered. Snowboarding in Idaho... wait, that is just because you have to spend your wife's or the Kennedy billions somehow. I guess something else besides hating Bush does matter to the Dems. Big money. Soros big money. Kerry and Kennedy big money. And the big money from Hollywood and the donors that fund these attacks. This is about pandering to the pacifist base of the far left wing of the Democratic Party to get their money and votes. And it is at all of the rest of us's expense.
Posted by: Justin B at July 2, 2006 12:20 PM