The SWIFT financial records program: Snowballing?

By Lee Russ

Monday, June 26, 2006 at 05:41 PM

Once again the administration is in full pursuit of the media for having divulged the 'till then secret operation by which the US searched international banking records held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) for evidence of terrorist funding.  But the program itself may serve as the small rock that collects more and more snow as it rolls onward.

We're looking at the beginning of another campaign to keep the mainstream media from reporting anything that the government does that might be illegal by portraying the media as treasonous and either launching or threatening to launch an investigation of the media leak.  And we're looking at the likely start of another round of international hostility from countries whose citizens had their records monitored by the US in secret.

From today's White House press briefing by Tony Snow (emphasis added):

Q ...With the President and the Vice President, in essence, going after The New York Times today, are they trying to create a chilling effect on media outlets that might cover stories of this nature?

Snow:...Traditionally in this country in a time of war, members of the press have acknowledged that the Commander-in-Chief, in the exercise of his powers, sometimes has to do things secretly in order to protect the public. This is a highly unusual departure. It's interesting, The Times, talking about this being a -- this program having been a departure from previous banking efforts. This is also a departure from long-standing traditions here in the United States.

So it is -- it's not designed to have a chilling effect. I think what it's -- if The New York Times wants a spirited debate about it, it's got it. But, certainly, nobody is going to deny First Amendment rights. 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 overwrite somebody's right to live, and whether, in fact, the publications of these could place in jeopardy the safety of fellow Americans.

Q But it seems to me that in the NSA's spying...case in December, that the President called that a shameful lack and there should be an investigation, an investigation has proceeded. But we're still not at the point where any "charges" have been made, or anything has been filed. It's the same kind of outrage we hear now from the President. But is there a legal leg to stand on, or is the administration that worried about it, that there would be --

MR. SNOW: Again, I'm not going to try -- as you know, there really is a process, the criminal referral process, by which people would investigate whether these things -- these kinds of revelations and leak would violate the law. We'll have to see whether such things -- and typically, referrals are not made public, and certainly I'm not going to do it now. But here's -- this administration really went the extra mile with The Times. It cited legal justification, and we went through this the other day. The International Emergency Powers Act of 1997, the United Nations Participation Act, Executive Order 13224 -- it talked about the safeguards that had been put in place. Before subpoenaing SWIFT, somebody in the United States of America had to cite specific authorizing intelligence. That request was then reviewed by an outside auditing board.

Data was not provided on a real-time basis, but after a delay, sometimes of several months. The whole idea was to track networks, not simply to chase people around. It could not be used on American citizens who were engaged in law-abiding activities. It couldn't even be used for unrelated activities that may, themselves, have been criminal, such as drug trafficking or bank fraud. So there have been a whole series of things. The administration did everything it could not only to lay out in as great a detail as possible what the program was, but to make the case that it would not be in the national security interests.

In response, one of the things Bill Keller said is, "It is not our job to pass judgment on whether this program is legal or effective." Well, it is your job to exercise editorial judgment. All of us got into this business -- I've been in journalism 27 years -- when I got into the business, one of the things that everybody learns is you have to exercise editorial judgment. I daresay many people in this room have been faced with difficult decisions in their careers, and probably all of us have had stories where we killed them because there was somebody's own privacy right or interest involved.

So you simply cannot say, we got this story, we're going to publish it, but we don't have to worry about whether it's legal or effective. In this case, I think it does bear on the debate.

....
Q....You said that is the right -- is the public's right to know greater than somebody's right to live. How about Congress's right to know? We've asked you a couple of times when Congress is briefed, and who?

MR. SNOW: Well, here's an interesting thing, because does all Congress need -- there are two pieces of data that are relevant. Number one, there doesn't seem to be any evidence that anybody in Congress has been offended by the existence of this program. In fact, quite the contrary, Congress has actually been pushing Treasury to engage in even more aggressive surveillance of all cross-border financial transactions, period, and so the Treasury Department has been doing it.

Number two, the intelligent -- relevant members of the intelligence committees have been informed about this. This has not been done in a vacuum.

.....

Q Can I ask one follow-up, also? You've said that this was a departure from previous wars where journalists may have been willing to hold things back. Apart from the Bay of Pigs in the '60s, what are other historical examples --

MR. SNOW: Well, I mean, it seems to me -- for instance, D-Day, you had embedded reporters who just said, oh, by the way, we're going to France tomorrow. I don't know whether people were in on the Enigma program in World War II. There have been a number of cases -- keep in mind that reporters quite often in the past did travel with troops, and they did know things that were going to happen and they did know overall schemes. In fact, they knew battle plans that they may have thought were totally foolhardy. But they did keep them confidential.

There are a lot of claims in that excerpt, a lot of claims.  But since I know better than to take the administration's word, I'd like to know:

1. Is it true (and how would we know?) that "It could not be used on American citizens who were engaged in law-abiding activities. It couldn't even be used for unrelated activities that may, themselves, have been criminal"??

2. How can you not be creating a chilling effect when you publicly paint those media who divulge info you want kept secret as traitors, enemy sympathizers, etc?  And also try to track down and punish any insiders who passed info along to the media?

3. Who exactly are the "relevant members of the intelligence committees"???

4.  Who in Congress has been "pushing Treasury to engage in even more aggressive surveillance of all cross-border financial transactions"???

As for Snow's examples of past times when the press kept quiet about information concerning the government's actions, you don't have to be a genius to see that his one certain example of D-Day involved military operations on a battlefield, and during a time of true (declared) war.  To state the obvious, no media outlet has spilled the beans on any coming military operations that would have endangered the lives of the soldiers carrying them out.  Not one.

His possible example of the Enigma code machine both involved a declared war and did not involve any snooping through the records of citizens who quite likely were innocent of any connection to Nazi Germany and the Enigma machine.

Is the administration again advancing the theory that it tried out in the context of the NSA eavesdropping that in this kind of "war" on terror, every single action taken by the executive branch is the equivalent of a military action?

And totally apart from whether the US broke any domestic laws, we have likely created another international controversy in which the US is viewed as the arrogant monolith which cares not a whit about how its actions affect other nations.  The records we've been looking through involve citizens of countless other countries.  Those other countries aren't likely to be happy with SWIFT, and aren't likely to be happy with the US.  One source says:

According to Reuters, the Belgian government has already launched an investigation into the data transfer, which may be illegal under local law. It's possible that other countries will follow suit. The European Commission is reportedly backing away from any regulatory responsibility, citing a lack of appropriate legislation, and pushing the issue back into the hands of member states. The wind-up could be that Swift will find itself regulated to death, although a whitewash seems the more likely outcome.

If a whitewash is not forthcoming, SWIFT may find that cooperating with Bush has gotten SWIFT the same thing it got Colin Powell:  A swift kick in the ethics and a permanent scar on its reputation for trustworthiness.