National Security Be Damned
The guiding philosophy on West 43rd Street.
Jul 3, 2006, Vol. 11, No. 40 • By HEATHER MAC DONALD
BY NOW IT'S UNDENIABLE: The New York Times is a national security threat. So drunk is it on its own power and so antagonistic to the Bush administration that it will expose every classified antiterror program it finds out about, no matter how legal the program, how carefully crafted to safeguard civil liberties, or how vital to protecting American lives.
The Times's latest revelation of a national security secret appeared on last Friday's front page--where no al Qaeda operative could possibly miss it. Under the deliberately sensational headline, "Bank Data Sifted in Secret by U.S. to Block Terror," the Times blows the cover on a highly targeted program to locate terrorist financing networks. According to the report, since 9/11, the Bush administration has obtained information about terror suspects' international financial transactions from a Belgian clearinghouse of international money transfers.
The procedure for obtaining that information could not be more solicitous of privacy and the rule of law: Agents are only allowed to seek information based on intelligence tying specific individuals to al Qaeda; they must document the intelligence behind every search request and maintain an electronic record of every search; and, in an inspired civil liberties innovation that would undoubtedly garner kudos from the Times had a Democratic administration devised it, a board of independent auditors from banks reviews the subpoena requests to make sure that only terror suspects' transactions are traced. Any use of the data for criminal investigations into drug trafficking, say, or tax fraud is banned. The administration briefed congressional leaders and the 9/11 Commission about the system.
There is nothing about this program that exudes even a whiff of illegality. The Supreme Court has squarely held that bank records are not constitutionally protected private information. The government may obtain them without seeking a warrant from a court, because the bank depositor has already revealed his transactions to his bank--or, in the case of the present program, to a whole slew of banks that participate in the complicated international wire transfers overseen by the Belgian clearinghouse known as the Society for Worldwide Interbank Financial Telecommunication, or Swift. To get specific information about individual terror suspects, intelligence agents prepare an administrative subpoena, which is issued after extensive internal agency review. The government does not monitor a terror suspect's international wire transfers in real time; the records of his transactions are delivered weeks later. And Americans' routine financial transactions, such as ATM withdrawals or domestic banking, lie completely outside of the Swift database.
The administration strongly urged the New York Times not to expose this classified program, and for good reason. According to the Times itself, the program has proven vital in hunting down international killers. The Indonesian terrorist Hambali, who orchestrated the Bali resort bombings in 2002, was captured through the Swift program; a Brooklyn man who laundered $200,000 for al Qaeda through a Karachi bank was tracked via the program. The Wall Street Journal adds that the July 7, 2005, London subway bombings were fruitfully investigated through the Swift initiative and that a facilitator of Iraqi terrorism has been apprehended because of it.
A coterie of former and current Democratic and Republican leaders also begged the Times not to jeopardize this highly successful counterterrorism program, but the Times knew better. In a smug prepared statement, executive editor Bill Keller emotes: "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."
Now that the Times has blown the cover on this terror-tracking initiative, sophisticated terrorists will figure out how to evade it, according to the Treasury's top counterterrorism official, Stuart Levey, speaking to the Wall Street Journal. The lifeblood of international terrorism--cash--will once again flow undetected.
The bottom line is this: No classified secret necessary to fight terrorism is safe once the Times hears of it, at least as long as the Bush administration is in power. The Times justifies its national security breaches by the mere hypothetical possibility of abuse--without providing any evidence that this financial tracking program, or any other classified antiterror initiative that it has revealed, actually has been abused. To the contrary, the paper reports that one employee was taken off the Swift program for conducting a search that did not obviously fall within the guidelines.
The truth the Times evades is that while every power, public or private, can be misused, the mere possibility of abuse does not mean that a necessary power should be discarded. Instead, the rational response is to create checks that minimize the risk of abuse. Under the Times's otherworldly logic, the United States might be better off with no government at all, because governmental power can be abused. It should not have newspapers, because the power of the press can be abused to harm the national interest (as the Times so amply demonstrates). Police forces should be disbanded, because police officers can overstep their authority. National security wiretaps? Heavens! Expose all of them.
The Times implies a second reason it ignored the government's fervent requests to protect the program's secrecy: Large databases were involved. The Times has an attack of the vapors whenever evidence of terrorist planning is found in databases, reasoning that any program to harvest that evidence is a privacy threat and should be exposed. Such logic, if taken seriously, would mean an end to all computerized investigations and would create an impregnable shield to terrorist activity in cyberspace. Anything a terrorist does that is recorded by computers will by its very nature be interspersed among records of millions if not billions or trillions of innocent transactions by unrelated parties. That fact alone should not disable the government from seeking the evidence; it merely means that the government should follow existing procedures governing the collection of evidence--as, in the case of the Swift program, it has.
The paranoia of the New York Times's editors really has reached astonishing levels. When you think about it, virtually every piece of evidence ever gathered in criminal or national security cases is embedded in harmless activity. On the Times's theory, police officers should not walk beats looking for criminal activity, because they are observing innocent passersby as well.
The Times offers a third justification for its reckless breach of national security: "The program . . . is a significant departure from typical practice in how the government acquires Americans' financial records." Indeed. And 9/11 marked a significant departure from most Americans' experience of jet travel. The hijackings revealed unmistakably the need for innovative intelligence programs to disrupt future attacks. By the Times's hidebound ethic, however, anything new that the Bush administration does to protect the public is suspect and must be revealed. Needless to add, this prejudice against innovation will not prevent the Times from raising hell about Bush administration incompetence if the country is attacked again, just as the Times railed against the administration for "failing to connect the dots" before 9/11--a failure caused in large part by unnecessary civil libertarian restraints on fully lawful powers.
The Times's ritual invocation of the "public interest" cannot disguise the weakness of their argument for revealing this highly successful antiterror program. Its editors seem aware of this, and hence try to link this program to the more legitimately controversial NSA wiretapping program that was revealed (by the same reporters--Eric Lichtblau and James Risen) last December, also in defiance of administration requests. Though acknowledging in passing that the Swift program is in fact separate from the wiretapping program, the Times links them on the grounds that both "grew out of the Bush administration's desire to exploit technological tools to prevent another terrorist strike." The revelation of the NSA program has "provoked fierce public debate and spurred lawsuits," the Times notes with self-satisfaction, and thus, by implication, the Swift program should, too. Do they seriously believe the U.S. government should not exploit technological tools in the war on terror?
Al Qaeda has long worked to manipulate the media in its favor. It can disband that operation now, knowing that, unbidden, America's most powerful newspaper is looking out for its interests.
Heather Mac Donald is a contributing editor to the Manhattan Institute's City Journal.