Yet again, the New York Times was presented with a simple choice: help protect American national security or help al Qaeda.
Yet again, it sided with al Qaeda.
Once again, members of the American intelligence community had a simple choice: remain faithful to their oath — the solemn promise the nation requires before entrusting them with the secrets on which our safety depends — or violate that oath and place themselves and their subjective notions of propriety above the law.
Once again, honor was cast aside.
For the second time in seven months, the Times has exposed classified information about a program aimed at protecting the American people against a repeat of the September 11 attacks. On this occasion, it has company in the effort: The Los Angeles Times runs a similar, sensational story. Together, the newspapers disclose the fact that the United States has covertly developed a capability to monitor the nerve center of the international financial network in order to track the movement of funds between terrorists and their facilitators.
The effort, which the government calls the “Terrorist Finance Tracking Program” (TFTP), is entirely legal. There are no conceivable constitutional violations involved. The Supreme Court held in United States v. Miller (1976) that there is no right to privacy in financial-transaction information maintained by third parties. Here, moreover, the focus is narrowed to suspected international terrorists, not Americans, and the financial transactions implicated are international, not domestic. This is not data mining, and it does not involve fishing expeditions into the financial affairs of American citizens. Indeed, few Americans even have information that is captured by the program — though there would be nothing legally offensive even if they did.
And unlike the last vital program the New York Times compromised — the National Security Agency’s Terrorist Surveillance Program, which the same reporters, James Risen and Eric Lichtblau, exposed last December — there is not even a facially plausible concern that the TFTP violates statutory law. The provisions germane here (mainly, the Right to Financial Privacy Act that Congress enacted in 1978 in reaction to Miller) do not even apply to the nerve center at issue, the Society of Worldwide Interbank Financial Telecommunication.
That’s because SWIFT, as it is better known, is not a financial institution at all. It is a consortium, centered not in the U.S. but in Belgium, which simply — albeit importantly — oversees how funds are routed globally. It is a messenger, not a bank. Nevertheless, in an abundance of caution, the government uses administrative subpoenas — which were expressly provided for by Congress in the aforementioned Financial Privacy Act and the Patriot Act — when it seeks SWIFT information. That’s not just legal; it’s hyper-legal.
Nor is there any credible worry that the Bush administration is secretly and dictatorially running roughshod over privacy interests. Prominent members of Congress — including elected officials from both parties who serve on the House and Senate Intelligence Committees — have been briefed on the program since its inception after the 9/11 attacks.
The administration, moreover, has worked closely with SWIFT managers, who are led by the National Bank of Belgium and include such other independent financial powerhouses as the Bank of England, the European Central Bank, and the Bank of Japan, as well as the U.S. Federal Reserve. The resulting collaboration has both narrowed the information gathered and ensured that its use is limited to counterterrorism purposes — not the prosecution of ordinary crimes. As if that were not enough, the TFTP is regularly subjected to independent auditing as an additional safeguard ensuring that information is accessed only for terrorism-related purposes.
No, the most salient thing we learn from today’s compromise of the TFTP is that the program has been highly effective at keeping us safe. According to the government, it has helped identify and locate terrorists and their financial backers; it has been instrumental in charting terrorist networks; and it has been essential in starving these savage organizations of their lifeblood: funding.
The TFTP was evidently key to the capture of one of the world’s most formidable terrorists. Riduan bin Isamuddin, better known as “Hambali” — the critical link between al Qaeda and its Indonesian affiliate, Jemaah Islamiya, and thus at the center of the 2002 Bali bombing in which 202 people were slaughtered — is now in U.S. custody rather than wreaking more mayhem. He was apprehended in Thailand in 2003, thanks to the program, which identified a previously unknown financial link to him in Southeast Asia.
In another example, the TFTP led to the discovery that Uzair Paracha, in Brooklyn, might be laundering money for al Qaeda in Pakistan. Paracha was ultimately indicted. Last November, a federal jury in Manhattan convicted him for providing material support to a terrorist organization — specifically, trying to help an al Qaeda operative enter the United States to commit a terrorist act.
It was in view of the TFTP’s palpable value in protecting American lives, its obvious legal propriety, and the plain fact that it was being responsibly conducted that the administration pleaded with the newspapers not to reveal it after government officials despicably leaked it. Exposing the program would tell the public nothing about official misconduct. It would accomplish only the educating of al Qaeda — the nation’s enemy in an ongoing war; an enemy well-known to be feverishly plotting new, massive attacks — about how better to evade our defenses. About how better to kill us.
Appealing to the patriotism of these newspapers proved about as promising as appealing to the humanity of the terrorists they so insouciantly edify — the same monsters who, as we saw again only a few days ago with the torture murder of two American soldiers, continue to define depravity down.
The newspapers, of course, said no. Why? What could outweigh the need to protect a valid effort to shield Americans from additional, barbarous attacks? Bill Keller, executive editor of the New York Times, smugly decreed that the Bush administration’s “access to this vast repository of international financial data” was, in his singularly impeccable judgment, “a matter of public interest.”
And you probably thought George Bush was the imperious one. And that the public’s principal interest was in remaining alive. Wrong again.
The blunt reality here is that there is a war against the war. It is the jihad of privacy fetishists whose self-absorption knows no bounds. Pleas rooted in the well-being of our community hold no sway.
The anti-warriors know only the language of self-interest. It is the language that tells them the revelation of the nation’s secrets will result, forthwith, in the demand for the revelation of their secrets — which is to say, their sources in the intelligence community — with incarceration the price of resistance. It is the language admonishing that even journalists themselves may be prosecuted when their publication of national secrets violates the law.
Bluntly, officials who leak the classified information with which they have been entrusted can be prosecuted for theft of government property. If the information is especially sensitive, they can be prosecuted for violating the Espionage Act. In either event, the press has no legal right to protect such lawlessness.
That is our simple choice: Strong medicine we will either take or persist in declining … while resigning ourselves to more of the same.
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.