Arguing in the alternative--Clarke says the Times was just Blowing Smoke
Here’s Richard Clarke and Roger Cressey in the New York Times:Privacy rights advocates, with whom we generally agree, have lumped this bank-monitoring program with the alleged National Security Agency wiretapping of calls in which at least one party is within the United States as examples of our government violating civil liberties in the name of counterterrorism. The two programs are actually very different. Any domestic electronic surveillance without a court order, no matter how useful, is clearly illegal. Monitoring international bank transfers, especially with the knowledge of the bank consortium that owns the network, is legal and unobjectionable. … These initiatives, combined with treaties and international agreements, should leave no one with any presumption of privacy when moving money electronically between countries.
I bolded that part because it moots the argument that privacy interests were implicated by the Swift program. If there is no expectation of privacy in a transaction or communication, no warrant is necessary. It’s public knowlege. And it’s basic 4th Amendment stuff. The police can get your credit card records without a warrant, because you were willing to share them with the credit card company. The police can get a list of who you call on the phone, because you’re willing to share that information with the phone company (as opposed to tapping the content of the conversation itself, which does require a warrant.) No harm, say C&C; no foul.
C&C also speculate that President Bush’s reaction to the Timeses’ disclosure is a Rovian electoral calculation, and the value of the program is not that we catch terrorists with it, but that we make it more difficult for them to move money. C&C wonder whether “… the press [should] really be called unpatriotic by the administration, and even threatened with prosecution by politicians, for disclosing things the terrorists already assumed?” As Allahpundit points out, however, they ignore the fact that Hambali the Bali Bomber was caught because of information gathered through precisely this surveillance of his SWIFT transactions.
I am just fascinated that the Times thought running this piece was a good idea. Because it amounts to a repudiation of some the fundamental premises of James Risen and Eric Lichtblau’s original reporting.
Remember, this was supposedly a “secret” program. Hush-hush, nobody knows, classified—hence the title of R&L’s piece “Bank Data Secretly Reviewed by U.S. to Fight Terror”. They also have a caption to a picture there that says “Data provided by the program helped identify Uzair Paracha, a Brooklyn man who was convicted on terrorism-related charges in 2005, officials said.” But don’t pay attention to that right now. We’re arguing in the alternative.
Which we will continue to do below the jump…
CONTINUED: See, the point of Risen and Lichtblau’s “bombshell” here is that this is a clandestine program and a closely-guarded secret. That’s why they say things like how the program “stirred concerns inside the administration about legal and privacy issues.” But of course that’s absurd. Everyone knows, according to Richard Clarke, that international transfers are monitored, and has for a long time.
Likewise, when Risen and Lichtblau report that “Officials described the Swift program as the biggest and most far-reaching of several secret efforts to trace terrorist financing,” that’s kind of, well, a lie because it was never secret at all. Everybody knew about it, right? Or when “Swift executives have been uneasy at times about their secret role,” they’re just being paranoid because everyone knows international wire transfers are, as my law-talkin’ friends might put it, “pervasively regulated” and therefore their role isn’t secret at all.
Or a little later, when they say that “While the banking program is a closely held secret, administration officials have conducted classified briefings” to Congress, they really mean that “the program is wide open, that everybody pretty much knows about it, like Valerie Plame being a spy.” Or when they point out thatIn terrorism prosecutions, intelligence officials have been careful to “sanitize,” or hide the origins of evidence collected through the program to keep it secret……one wonders why they even bother. Because everyone knew about this all along. Why, it was mentioned in a UN Report in 2002, right? And we know that Al-Qaeda’s research division spends its time reading through every exciting financial document that the U.N. churns out.
And I’m puzzled by this line: “By 2003, the cooperative’s officials were discussing pulling out because of their concerns about legal and financial risks if the program were revealed, one government official said.”
What’s the problem? Why could they possibly worry if this non-secret, well-known program came out that just reported information everybody knew was public knowledge anyway came out? Everyone would just say, well, of course we all knew that, so what’s the big deal, Lucille?
And indeed that’s the strange thing about Richard Clarke’s op-ed appearing in the Times. As Patterico already noted, the Timeses are aware they’ve shot themselves in the foot with their disclosure. Now Richard Clarke is downplaying both the significance and the secrecy of their findings. Strange, huh? A paper that has won Pulitzers for its past exposures of American military and intelligence secrets, suddenly eager to publish someone saying, “Oh, this? It’s no big deal. Really. Wasn’t that big a secret. Hell, my grandmother knows SWIFT monitors international terror-linked financial transactions and shares the information with the CIA!”
In fact, if Clarke and Cressley are right about this, Lichtblau and Risen grossly exaggerated how secret the program really was.
Now personally, I think Clarke is a pretty smart guy, but he’s wrong. I think it was an extremely effective terrorist fighting tool, one that captured some very, very bad guys who obviously didn’t think they’d get caught when they wired money around the globe. Even if they suspected a transaction might be monitored, they occasionally chose to risk a transfer now and then because they didn’t understand it and they thought they could get away with it. I think the program was effective precisely because it was secret, and the Timeses went and ruined it in a fit of self-absorbed hubris that aids our enemies and makes Americans less safe.
But how will they respond to Clarke and Cressley? The New York Times can’t have its cake and eat it, too. Will Keller, Times, and Lichtblau continue to insist that the program was both effective and secret, and the story was a major Pulitzer-worthy scoop? Or will they continue backpedaling?
If they want to try to weasel out of this, let’s see it right there on the corrections page: “Importance and Secrecy of SWIFT Monitoring Program Greatly Exaggerated”. We might not believe them, but if they want to back away from the story, they should go all out. Otherwise the notion that they have traitorously decided (again) to help the terrorists by revealing a successful and legal program will persist, and it will continue to gather strength.
To be cross-posted at Patterico’s Pontifications.