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  • Assessing the Damage

    Filed at 7:06 am under by Scott Somerville

    Did the New York Times act irresponsibly when it published a report of a classified, legal, effective program?

    Daryl argues that it didn’t do any real damage, since Al Qaeda was too smart to engage in financial transactions that could be tracked. I would assume the Times relied on this reasoning to make the call to publish. The Bush Administration urged the Times not to publish, citing the damage that publication would do to national security. The Times calculated that the public’s right to know outweighed the potential threat to national security.

    If our only enemies were well-trained Al Qaeda operatives who are to clever to move money in a way that could be tracked, and if the SWIFT program continues to operate just as it did before the publication, then I would agree that the public’s right to know outweighs the harm to national security. But both these “ifs” are demonstrably not the case.

    FIrst, there are terrorist wannabes in Miami who aren’t at all clever–but they dream of mass murder. Daryl says there’s no harm done: such amateurs are too stupid to read the New York Times. I’m having trouble taking that argument seriously, but if Daryl really thinks our enemies are hopelessly inept morons, it would explain a lot that is a mystery to me at present.

    Second, there is good reason to believe the SWIFT program is now dead. As Scott Shane reported in the New York Times yesterday,

    “I would be surprised if terrorists didn’t know that we were doing everything we can to track their financial transactions, since the administration has been very vocal about that fact,” said William F. Wechsler, a former Treasury and National Security Council official who specialized in tracking terrorism financing.

    But Mr. Wechsler said the disclosure might nonetheless hamper intelligence collection by making financial institutions resistant to requests for access to records.

    “I wouldn’t be surprised if these recent articles have made it more difficult to get cooperation from our friends in Europe, since it may make their cooperation with the U.S. less politically palatable,” Mr. Wechsler said.

    The Times says “the Swift consortium has defended its cooperation with the counterterrorism program and has not indicated any intention to stop cooperating with the broad administrative subpoenas issued to obtain its data.” Others, however, note that the SWIFT consortium is based in Belgium, and that Belgian officials are already calling for investigations into the program.

    From my preliminary reading, the SWIFT program seems to have been a delicate house of diplomatic cards. The Times has shouted “privacy!” in a crowded theater, and I don’t expect the SWIFT program will survive the exposure.

    Daryl: if the SWIFT program is terminated because of diplomatic fallout, would you agree that the Times report has done any real damage?

    Tags: New York Times, SWIFT, Belgium

    16 Responses to “Assessing the Damage”


    Comment by
    Bonnie
    June 30th, 2006
    at 8:06 am

    I just have one thing to say because I don’t know enough about all this to debate it in any capacity.

    “National Security” is a joke. Our government can’t even keep our own veterans’ private information secure.

    As part of the Department of Veterans Affairs (VA) continuing efforts to protect and assist those potentially affected by the recent data theft that occurred at an employee’s Maryland home, VA announced on June 21 that the agency will provide one year of free credit monitoring to individuals whose sensitive personal information – Social Security Number (SSN) – may have been stolen in the incident.

    VA has no reason to believe the perpetrators who committed this burglary were targeting the data, and Federal investigators believe that it is unlikely that identity theft has resulted from the data theft.

    One year of free credit monitoring, huh? Oh joy…posting it on the VA website instead of sending out personal letters to vets is a good way to let the perps know to make some long-range plans.

    Security…riiiiiight!

    OK…back to your regularly scheduled program.


    Comment by
    Daryl Cobranchi
    June 30th, 2006
    at 8:21 am

    No, I would not. An illegal program, however well-intentioned and efficacious, is still illegal. Exposing such is the JOB of a free press. Just because SWIFT is based in Belgium and the NYT is in the US does not change the fact that our government was working with financial institutions in an extra-legal manner.

    SWIFT is not dead. Merely the part where they turn over private banking records without court supervision. Sounds a lot like FISA, doesn’t it?

    The truth is, Bush/Cheney/et al. want NO ONE (not courts, nor legislatures, nor the peons citizens) to know what they’re doing in our name. They can’t win that argument. The SCOTUS slapped them down yesterday, essentially destroying their legal arguments for not only the military tribunals but also for the NSA spying. Were SWIFT based in the US, the same rationale would hold.

    Sorry, Scott, you’re on the wrong side here: on the law, on liberty, and on history.


    Comment by
    Daryl Cobranchi
    June 30th, 2006
    at 8:54 am

    And you brought up the Miami 7. Yes, they’re hopelessly inept. And SWIFT would have done NOTHING to catch them since they would have been the recipients of money from the same Al Qaeda that doesn’t use the banking system to transfer money. So, you tell me how the NYT (and the LAT and WSJ) did any harm in catching domestic terrorists.

    And, Scott, I’m still waiting to hear why your ire is reserved for the NYT and the WSJ gets off scot free. Surely, you’re not THAT partisan.

    IOKIYAR = It’s OK if you’re a Republican.


    Comment by
    gawaine
    June 30th, 2006
    at 8:56 am

    OK, I think some commenters are confusing SWIFT with the NSA program. For Swift, democrats – including Murtha – were briefed fully. Swift resulted in the capture of a few terrorists, so whether or not terrorists are smart, it worked. Under the law, the administration didn’t need to use administrative subpeonas, but they did anyway, just to bend over backwards. People may want the law to work differently, but it isn’t “extra-legal.” I haven’t seen a single lawyer say that the program was in any way inappropriate to follow the law and do things the way they did them. When the Times asked three democrats who had been fully briefed if it was a good idea to release the info, Murtha was the only one who said it was. They went with him.

    That’s sharply different from the NSA wiretap program, where most law blogs I follow were at least on the fence, if not downright negative about it. There, the “extra-legal” comment might be apt, since there was a law on how to do things, and they allegedly didn’t follow it. Check out volokh.com for some actual legal analysis on both cases.

    As a side, tongue in cheek, note – if it’s so obvious that this would be done that the terrorists should all know about it, why shouldn’t we expect that Congress also knows about it and expects it? Or is Congress that much less intelligent than the terrorists?


    Comment by
    gawaine
    June 30th, 2006
    at 9:01 am

    Daryl – On the comment about the WSJ vs. the NYT; the NYT broke the story. They told the government that they would be breaking the story, and the government granted the WSJ interviews based on the fact that the cat was about to be out of the bag. I’m not upset at this blog entry talking about SWIFT, or any of the other articles out there (pro or con), because they’re opinions about things that are already out there, not warnings.

    Most conservatives that I know of are actually more upset at the LA Times than the NYT, assuming they read them both, as the NYT at least acknowledged that several terrorists who had killed hundreds of people were caught by the program, where the LA Times alleged that it was unsuccessful.


    Comment by
    Daryl Cobranchi
    June 30th, 2006
    at 9:29 am

    Under the law, the administration didn’t need to use administrative subpeonas, but they did anyway, just to bend over backwards. People may want the law to work differently, but it isn’t “extra-legal.” I haven’t seen a single lawyer say that the program was in any way inappropriate to follow the law and do things the way they did them. When the Times asked three democrats who had been fully briefed if it was a good idea to release the info, Murtha was the only one who said it was. They went with him.

    Lots of inaccuracies here.

    1) Sen. Arlen Specter on the day the story broke wondered aloud about it taking a newspaper article to finally force the Administration to follow the law. Specter is a lawyer. And it certainly is extra-legal in the EU which has stronger privacy laws that in the US. So, we have a program that was breaking the law in 15 countries and potentially breaking the law here.

    2) They didn’t ask three Democrats. They asked the two co-chairs of the 9/11 Commision (1 R, 1 D) and Murtha. All that Keller has revealed is that the Republican co-chair asked them not to publish and that at least one of the other two did not. We do not know if both Democrats were ok with publishing, nor do we know if Murtha was in favor or opposed.


    Comment by
    Nance Confer
    June 30th, 2006
    at 9:49 am

    Not that it should be up to any of these Congressmen to decide what information the NY Times or any newspaper publishes for me.

    Off to read the accounts of how the Miami 7 were found out. I don’t remember a mention of SWIFT in the reports. . . or NSA or FISA . . . need more info on that.

    Nance


    Comment by
    Nance Confer
    June 30th, 2006
    at 9:52 am

    P.S. This sounds like good news to me. My bank damned well better be “resistant” to anyone accessing my records. All $22 of them. 🙂

    Nance


    Comment by
    Nance Confer
    June 30th, 2006
    at 9:53 am

    Sorry, I did the quote thing wrong. Here’s what I was referring to:

    But Mr. Wechsler said the disclosure might nonetheless hamper intelligence collection by making financial institutions resistant to requests for access to records.

    Nance


    Comment by
    Nance Confer
    June 30th, 2006
    at 10:14 am

    This

    blacka...sts627

    led me to this:

    washin...7.html

    And now I remember what was scrolling across our screens for a few days. This wasn’t related to SWIFT or NSA or FISA. This was an FBI operation. An FBI agent who was undercover as an al-Qaeda rep.

    So, good old-fashioned police work. FBI work. Nothing as fancy as checking for wire transfers. One quip in the first article is: “These guys didn’t have enough money to get to South Beach.”

    You’d need a car or bus fare to get from Liberty City (poor black ghetto for as long as I remember) to South Beach (trendy upscale party district) — these folks aren’t doing any wire transfers. I’d be surprised if most of them have bank accounts!

    The thing that amazes me is the slow pace of all of this. The FBI informant met with these guys in December. Nothing happened by May and “the plan had largely petered out because of organizational problems.”

    And then the guys were busted in June. 6 months. . . seems like a long time to me. . .

    Anyway, my curiosity is satisfied. I didn’t remember SWIFT being key to capturing these dastardly characters and, apparently, it wasn’t.

    Nance


    Comment by
    gawaine
    June 30th, 2006
    at 1:39 pm

    Nance – Correct, SWIFT wasn’t used for the Miami folks, who were unsuccessful.

    It was used for capturing the “alleged mastermind of the 2002 Bali bombing,” which killed 202 people, and in the arrest of a Brooklyn man who had allegedly laundered 200,000 dollars in money for al Qaeda. The second of the two was mentioned in the NYT story.

    I respectfully disagree with the idea that an unelected editor of a newspaper has more of a right to decide what to publish than a group of elected officials from two out of the three branches of government. Especially given that, had anyone sought to fight the subpeonas, they could have called on the third branch.

    Daryl – My mistake, you are correct about who they asked. There are also two different stories on whether Murtha did or did not request that they hang back in publishing this. The other democrat had said, at one time, that he had asked them to not publish the story.

    On the other hand, as far as I know Arlen Specter hasn’t advanced any sort of analysis on how exactly this program is illegal. Could you provide a citation to a legal analysis, that explicitly outlines how this is wrong? Not that you need to care what some essentially anonymous commenter thinks, but I’d happily admit I was wrong if there is such a document. Specter is on the Judiciary committee, but he, like most politicians of both parties and bloggers on all sides, can express an opinion without it being a legal opinion or having any basis in fact.


    Comment by
    Daryl Cobranchi
    June 30th, 2006
    at 2:08 pm

    I respectfully disagree with the idea that an unelected editor of a newspaper has more of a right to decide what to publish than a group of elected officials from two out of the three branches of government.

    Disagree all you wish. The press has broad latitude in what it publishes, even in time of (pseudo) war. One may argue with the wisdom of publishing the info on this program, but there is no doubt that the NYT had the right to publish.

    Especially given that, had anyone sought to fight the subpeonas, they could have called on the third branch.

    Until yesterday, the President believed that he could ignore any law that Congress passed if he felt it undermined his ability to fight the War on Terror. Presumably, the same “reasoning” would have applied to any court that ruled against them. I trust that yesterday’s decision has disabused the Adminstration of the notion that they are above the law.

    Could you provide a citation to a legal analysis

    All I saw was the quote. Specter didn’t give any info on what law he was referring to. But, the fact of the matter is that at least one highly prominent lawyer has indeed questioned the legality of the program.


    Comment by
    Nance Confer
    June 30th, 2006
    at 2:15 pm

    The problem with Sen. Specter is that he huffs and puffs over all sorts of things. Just when you think he might actually demand some sort of accountability from this administration, he backs down.

    Maybe yesterday’s Supreme Court ruling will give him some courage.

    Nance


    Comment by
    Daryl Cobranchi
    June 30th, 2006
    at 4:05 pm

    As was written elsewhere, I won’t be holding my breath.


    Comment by
    MC BURNS
    July 1st, 2006
    at 4:17 am

    Daryl,

    Here is why the WSJ is not to be tied to the Times’…

    Fit and Unfit to Print

    opinio...008585

    …The Times decided to publish anyway, letting Mr. Fratto know about its decision a week ago Wednesday. The Times agreed to delay publishing by a day to give Mr. Fratto a chance to bring the appropriate Treasury official home from overseas. Based on his own discussions with Times reporters and editors, Mr. Fratto says he believed “they had about 80% of the story, but they had about 30% of it wrong.” So the Administration decided that, in the interest of telling a more complete and accurate story, they would declassify a series of talking points about the program. They discussed those with the Times the next day, June 22.

    Around the same time, Treasury contacted Journal reporter Glenn Simpson to offer him the same declassified information. Mr. Simpson has been working the terror finance beat for some time, including asking questions about the operations of Swift, and it is a common practice in Washington for government officials to disclose a story that is going to become public anyway to more than one reporter. Our guess is that Treasury also felt Mr. Simpson would write a straighter story than the Times, which was pushing a violation-of-privacy angle; on our reading of the two June 23 stories, he did.


    Comment by
    Nance Confer
    July 1st, 2006
    at 7:46 am

    Well, that was nice of the WSJ to publish the administration’s talking points. Goodness knows we don’t see enough of those! 🙂

    And it’s all declassified stuff now, anyway? Or just the bits that fit the talking points?

    I’d rather get news than press releases, thank you NY Times!

    Nance