Tuesday, June 27, 2006

Treason and The New York Times

An interesting story, isn't it? The New York Times first publishes classified government information in an article about yet another secret Bush administration program:

Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.

The program is limited, government officials say, to tracing transactions of people suspected of having ties to Al Qaeda by reviewing records from the nerve center of the global banking industry, a Belgian cooperative that routes about $6 trillion daily between banks, brokerages, stock exchanges and other institutions. The records mostly involve wire transfers and other methods of moving money overseas and into and out of the United States. Most routine financial transactions confined to this country are not in the database.

Viewed by the Bush administration as a vital tool, the program has played a hidden role in domestic and foreign terrorism investigations since 2001 and helped in the capture of the most wanted Qaeda figure in Southeast Asia, the officials said.

The program, run out of the Central Intelligence Agency and overseen by the Treasury Department, "has provided us with a unique and powerful window into the operations of terrorist networks and is, without doubt, a legal and proper use of our authorities," Stuart Levey, an under secretary at the Treasury Department, said in an interview on Thursday.

The program is grounded in part on the president's emergency economic powers, Mr. Levey said, and multiple safeguards have been imposed to protect against any unwarranted searches of Americans' records.

The program, however, is a significant departure from typical practice in how the government acquires Americans' financial records. Treasury officials did not seek individual court-approved warrants or subpoenas to examine specific transactions, instead relying on broad administrative subpoenas for millions of records from the cooperative, known as Swift.

That access to large amounts of confidential data was highly unusual, several officials said, and stirred concerns inside the administration about legal and privacy issues.

"The capability here is awesome or, depending on where you're sitting, troubling," said one former senior counterterrorism official who considers the program valuable. While tight controls are in place, the official added, "the potential for abuse is enormous."

The program is separate from the National Security Agency's efforts to eavesdrop without warrants and collect domestic phone records, operations that have provoked fierce public debate and spurred lawsuits against the government and telecommunications companies.

But all the programs grew out of the Bush administration's desire to exploit technological tools to prevent another terrorist strike, and all reflect attempts to break down longstanding legal or institutional barriers to the government's access to private information about Americans and others inside the United States.

Officials described the Swift program as the biggest and most far-reaching of several secret efforts to trace terrorist financing. Much more limited agreements with other companies have provided access to A.T.M. transactions, credit card purchases and Western Union wire payments, the officials said.

Nearly 20 current and former government officials and industry executives discussed aspects of the Swift operation with The New York Times on condition of anonymity because the program remains classified. Some of those officials expressed reservations about the program, saying that what they viewed as an urgent, temporary measure had become permanent nearly five years later without specific Congressional approval or formal authorization.

The floodgates then opened. The wingnut blogs wanted the Times taken to court for treason, for its offices to be permanently closed down and worse. The blogs on the right were unanimous in their condemnation of the newspaper: To release classified information during a time of war amounts to treason and to aiding and abetting the enemy. Off with her head, went the call in Wingnuttia. Finally, the liberal media was caught in a most horrendous act of unpatriotism and America-hating. Finally, the evidence was there to show that the real terrorists are domestic ones and consist of the liberal media. And so on.

President Bush called the revelations "disgraceful". His spokesman Tony Snow warned the Times of the consequences of its actions:

But the New York Times and other news organizations ought to think long and hard about whether a public's right to know in some cases might override somebody's right to live, and whether in fact the publications of these could place in jeopardy the safety of fellow Americans.

The strongest words of condemnation came from Representative Peter T. King:

Interviewed on "Fox News Sunday," Rep. Peter T. King (R-N.Y.) said the newspaper compromised national security when it exposed a Treasury Department program that secretly monitored worldwide money transfers to track terrorist financing. The program, instituted after the Sept. 11 attacks, bypasses traditional safeguards against government abuse.

"By disclosing this in time of war, they have compromised America's anti-terrorist policies," said King, referring to New York Times reporters and editors. "Nobody elected the New York Times to do anything. And the New York Times is putting its own arrogant, elitist, left-wing agenda before the interests of the American people."

Calling the report "absolutely disgraceful," King said he would call on Atty. Gen. Alberto R. Gonzales to begin a criminal investigation of the newspaper.

But by far the funniest fight over the whole question can be seen at a videoed debate between two talk show hosts. The debate ended in the wingnut host storming off the set.

Then there is the other side, best described by the initial article itself:

But at the outset of the operation, Treasury and Justice Department lawyers debated whether the program had to comply with such laws before concluding that it did not, people with knowledge of the debate said. Several outside banking experts, however, say that financial privacy laws are murky and sometimes contradictory and that the program raises difficult legal and public policy questions.

The Bush administration has made no secret of its campaign to disrupt terrorist financing, and President Bush, Treasury officials and others have spoken publicly about those efforts. Administration officials, however, asked The New York Times not to publish this article, saying that disclosure of the Swift program could jeopardize its effectiveness. They also enlisted several current and former officials, both Democrat and Republican, to vouch for its value.

Bill Keller, the newspaper's executive editor, said: "We have listened closely to the administration's arguments for withholding this information, and given them the most serious and respectful consideration. We remain convinced that the administration's extraordinary access to this vast repository of international financial data, however carefully targeted use of it may be, is a matter of public interest."

Bill Keller elaborated on this in a later letter:

The Administration case for holding the story had two parts, roughly speaking: first that the program is good — that it is legal, that there are safeguards against abuse of privacy, and that it has been valuable in deterring and prosecuting terrorists. And, second, that exposing this program would put its usefulness at risk.

It's not our job to pass judgment on whether this program is legal or effective, but the story cites strong arguments from proponents that this is the case. While some experts familiar with the program have doubts about its legality, which has never been tested in the courts, and while some bank officials worry that a temporary program has taken on an air of permanence, we cited considerable evidence that the program helps catch and prosecute financers of terror, and we have not identified any serious abuses of privacy so far. A reasonable person, informed about this program, might well decide to applaud it. That said, we hesitate to preempt the role of legislators and courts, and ultimately the electorate, which cannot consider a program if they don't know about it.

We weighed most heavily the Administration's concern that describing this program would endanger it. The central argument we heard from officials at senior levels was that international bankers would stop cooperating, would resist, if this program saw the light of day. We don't know what the banking consortium will do, but we found this argument puzzling. First, the bankers provide this information under the authority of a subpoena, which imposes a legal obligation. Second, if, as the Administration says, the program is legal, highly effective, and well protected against invasion of privacy, the bankers should have little trouble defending it. The Bush Administration and America itself may be unpopular in Europe these days, but policing the byways of international terror seems to have pretty strong support everywhere. And while it is too early to tell, the initial signs are that our article is not generating a banker backlash against the program.

That's the sophisticated version of the arguments for publishing the article. My translation of it is that the media (not just the Times as information about the program was simultaneously published in other newspapers, including the conservative Wall Street Journal) is concerned about the levels of secrecy in this government and the existing imbalance of power between the executive and legislative branches of the government. The decision to write about this is what triggered the story. Yes, the information they published is classified, but then an awful lot of information seems to be classified by this government. Combine this with the new legal interpretations which argue that the president has the powers to do pretty much anything he pleases, and, well, it's possible to see why the press felt they had to publish this story.

I very much doubt that the facts in the story were new to the terrorists. We have known for a long time that the counterterrorism programs include financial data gathering, and I'm sure that the terrorists know that, too. They seem to be able to figure things out, especially when Bush mentions them in his speeches. What we didn't know, necessarily, is just how wide the government's financial nets might be and whether these nets could be used to catch completely unrelated fish.

Many of my wingnut acquaintances argue that the innocent have nothing to fear from the government's eavesdropping or money-checking programs, and that any attempts to criticize them only make sense if you love terrorists. Just trust the government to take care of you, they seem to say. But if all we needed was trust that people only do good things and that information never falls into wrong hands we'd need no laws or police enforcement, and I'm as suspicious of people in the government as in the marketplace. It's odd that the conservatives who usually really hate and suspect the very idea of government are less concerned about these current trends than an elite, latte-sipping welfare goddess like me.

It's something to do with the "fact" that we are at war. Wars make governments suddenly beautiful in the wingnut eyes, even wars against a formless and countryless enemy or a concept such as terror, even wars which have never been declared by the Congress. Even wars which will probably never end. Now, I have problems with all of that, more problems than I have with the New York Times.