Stop the Leaks

by The Editors

Every passing week, it becomes more apparent that disgruntled leftists in the intelligence community and antiwar crusaders in the mainstream media, annealed in their disdain for the Bush administration, are undermining our ability to win the War on Terror. Their latest body blow to the war effort is the exposure, principally by the New York Times, of the Treasury Department’s top-secret program to monitor terror funding.

President Bush, who said on Monday morning that the exposure “does great harm to the United States of America, must demand that the New York Times pay a price for its costly, arrogant defiance. The administration should withdraw the newspaper’s White House press credentials because this privilege has been so egregiously abused, and an aggressive investigation should be undertaken to identify and prosecute, at a minimum, the government officials who have leaked national-defense information.

The Terrorist Finance Tracking Program (TFTP) was initiated soon after the 9/11 attacks. It ingeniously focuses on the hub of interlocking systems that facilitate global money transfers. The steward of that hub, centered in Brussels, is the Society of Worldwide Interbank Financial Telecommunication, or “SWIFT.” SWIFT is an organization of the world’s financial giants, including the national banks of Belgium, England, and Japan, the European Central Bank, and the U.S. Federal Reserve. SWIFT, however, is not a bank. It’s a clearinghouse that manages message traffic pursuant to international transfers of funds.

Intelligence about those communications implicates no legally recognized privacy interests. To begin with, they are predominantly foreign, and international. To the extent the U.S. Constitution might be thought to apply, the Supreme Court held nearly 30 years ago that records in the hands of third parties — including financial records maintained by banks — are not private, and thus not protected by the Fourth Amendment. Moreover, to the extent Congress later supplemented privacy protections by statute, those laws regulated disclosures by financial institutions. SWIFT is not a financial institution.

Despite this legal daylight, the Bush administration has gone out of its way to defer to privacy concerns. Assuming that American law applied, it obtained SWIFT information by administrative subpoena. It carefully narrowed its scrutiny to those transacting with suspected terrorists. It concurred with its international partners that the resulting intelligence should be used only for counterterrorism and security purposes–not for prosecutions of ordinary crimes (even though such prosecutions would be legal under American law). And it agreed to subject the TFTP to independent auditing to ensure that the effort was trained on terrorists.

By all accounts, the program has been a ringing success. The administration maintains that the TFTP has been central to mapping terror cells and their tentacles, and to shutting off their funding spigot. It has resulted in at least one major domestic prosecution for providing material support to al Qaeda. It has also led to the apprehension of one of the jihad’s most insulated and ruthless operatives, Jemaah Islamiya’s Riduan Isamuddin, who is tied to the 2002 Bali bombing.

But as has happened with other crucial counterterrorism tools — such as the NSA’s program to monitor the enemy’s international communications, which the New York Times exposed, and the CIA’s arrangements for our allies to detain high-level Qaeda operatives, which the Washington Post compromised — the TFTP’s existence was disclosed to the Times and other newspapers by anonymous government officials, in violation of their legal obligation to maintain secrecy. The Bush administration pleaded with the newspapers not to publish what they had learned. But these requests, rooted in the national-security interests of the United States, were rebuffed. The Times, along with the Los Angeles Times (which also rejected a government request not to publish) and the Wall Street Journal, ran stories exposing the program. Yes, the public was being protected. Yes, terrorists trying to kill Americans were being brought to heel. Yes, it appears the program is legal. And yes, it appears the Bush administration made various accommodations out of respect for international opinion and privacy concerns. Despite all that, New York Times executive editor Bill Keller concluded 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.”

It is a matter of interest mainly to al Qaeda. The terrorists will now adapt. They will find new ways of transferring funds, and precious lines of intelligence will be lost. Murderers will get the resources they need to carry out their grisly business. As for the real public interest, it lies primarily in safety — and what the Times has ensured is that the public today is less safe.

Success in defeating the terrorists at war with us is dependent on good intelligence. Without obtaining it and keeping it secret, the government can’t even find the dots, much less connect them. If the compromising of our national-security secrets continues, terrorists will thrive and Americans will die. It has to be stopped.

The New York Times is a recidivist offender in what has become a relentless effort to undermine the intelligence-gathering without which a war against embedded terrorists cannot be won. And it is an unrepentant offender. In a letter published over the weekend, Keller once again defended the newspaper’s editorial decision to run its TFTP story. Without any trace of perceiving the danger inherent in public officials’ compromising of national-security information (a matter that the Times frothed over when it came to the comparative trifle of Valerie Plame’s status as a CIA employee), Keller indicated that the Times would continue revealing such matters whenever it unilaterally decided that doing so was in the public interest.

The president should match this morning’s tough talk with concrete action. Publications such as the Times, which act irresponsibly when given access to secrets on which national security depends, should have their access to government reduced. Their press credentials should be withdrawn. Reporting is surely a right, but press credentials are a privilege. This kind of conduct ought not be rewarded with privileged access.

Moreover, the Justice Department must be more aggressive than it has been in investigating national-security leaks. While prosecution of the press for publishing information helpful to the enemy in wartime would be controversial, pursuit of the government officials who leak it is not. At the very least, members of the media who report such information must be made to understand that the government will no longer regard them as immune from questioning when it investigates the leakers. They should be compelled to reveal their sources, on pain of contempt.