Say Anything Blog

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.

Riduan Isamuddin a/k/a Hambali	Uzair Paracha

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.

Crossposted from WILLisms.com