The right not to know (NY Times discloses more sensitive info, helping terrorism!)

The Washington Times ^ | June 24, 2006 | MASTHEAD EDITORIAL

[neverdem]

Once more the spoiler. Despite the earnest persuasion of the White House to preserve a useful weapon in the war against the terrorists, the New York Times has revealed the workings of a covert surveillance program, indisputably within the law, to use administrative subpoenas to examine, through a Belgian financial consortium known by the acronym SWIFT, the financing of international terrorism. Once the story was out, the Los Angeles Times and Wall Street Journal covered it as well. Now the program is damaged, perhaps severely so, and the financing of terror is harder to track. This is another unnecessary leak, six months after the New York Times revealed a secret National Security Agency terrorist surveillance program.

In its earlier scoop, the New York Times could reasonably argue legal uncertainty. Not this time. The Supreme Court ruled in United States v. Miller in 1976 that no right to privacy attaches to the type of third-party financial-transaction information SWIFT has provided to the Treasury Department. The Right to Financial Privacy Act, enacted by Congress in 1978 in the wake of United States v. Miller, allows just the administrative subpoenas Treasury has been using. So does the Patriot Act. The SWIFT transactions that Treasury has been examining are international in nature. The searches are specifically targeted at suspected or known terrorists, a "sharp harpoon aimed at the heart of terrorist activity," as Treasury Secretary John Snow puts it. The claim that the rights of American citizens are infringed is irrational, unduly partisan, or both.

The program clearly works. Treasury pointed immediately to the capture of the terrorist known as "Hambali." Hambali, or Riduan Isamuddin, masterminded the 2002 Bali bombings that killed 202 innocent men and women. He has been in U.S. custody since his arrest in 2003 in Thailand, and the SWIFT...

[Laverne]

Excellent news about Peter King. Why would any american want any of their tax dollars going to anti-terrorism support to NYCity, when the paper of record in that city, is openly supporting the terrorists?

[mewzilla]

These clowns at the NY Times, authors and resposible management, need to be prosecuted to the max.

As does the person who leaked the info to them.

[FunkyZero]

I may get a bad reaction here, but Gov. control of the press? It has a haunting hint of North Korea in it... I really don't like the sound of that.
On the other hand, leaking of classified information should carry a life sentence. The Times should also be forced to reveal the source. This would put an immediate stop to it. Reveal your source, or face a (insert unrealistic fine here) penalty, payable to the (insert your fav charity here) fund.
Really, the press should have enough restraint to uphold the requests of the gov. in cases like this, but they don't.
In this particular case, no big secret was let out. It wasn't common knowledge for sure, but it wasn't a secret.
Also, the Wall Street Journal chose to publish it too.. shame on them as well. Having said that, if this were to have been critical secret information, the NYT would have printed it anyway, so my argument is kind of null.
I just don't think we should tiptoe into what could wind up being a form of censorship. Instead, we need to knock this out at the knees... kill the messenger (the leaker) and we do this by forcing the outlet (NYT) to reveal the source or pay dearly.

[mware]

At the very least I want the AG to compel the authors of the articles to say who leaked this legal and top secret program to them. Barring that, keep em in jail until they rot.

[Erik Latranyi]

The liberals are waiting for another terrorist attack on the United States so they can blame the Bush Administration and the war in Iraq.

The NY Times and other mainstream media are giving the Bush Administration a HUGE excuse when the next attack occurs.

Liberals just don't know how to shut up.

[Gone GF]

I'd argue that any terrorist who didn't already suspect this type of thing was going on isn't smart enough to be much of a threat. Same with the phone tapping.

[andy58-in-nh]

The NYT may be prosecuted under 18 USC 798 - the "Comint" statute.

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

[shalom aleichem]

Right. Comint status and also RICO can apply. "Young scholar" is throwing up a little fog today. Don't assume the NYTimes and WaPo lack allies.

We could spend a lot of time trying to figure out what motivates treason and/or national suicide, but it is better time spent just beating them and their cause.

[gondramB]

>>"... the code. It requires cause and notification to the customer"....do these laws and regulations apply to non-citizens? IMHO, a non-citizen (alien) should not expect Constitutional protection.<<


My concern with the government program is the allegation that many of citizens have had their privacy violated.

But, as a technical matter, it appears the law applies to all banking customers.



>>Except as provided by section 3403 (c) or (d), 3413, or 3414 of this title, no Government authority may have access to or obtain copies of, or the information contained in the financial records of any customer from a financial institution unless the financial records are reasonably described and—<<

http://www.law.cornell.edu/uscode/html/uscode12/usc_sup_01_12_10_35.html


Its looks to me like we likely have two different problems - The NY Times revealing a classified program and a classified program that is probably illegal and even if they found some kind kind of loophole clearly goes against the intent of the law.

if the administration wants the right to go through all our financial records they should say so in public and get a law passed so the voters can respond.

I wonder how many posters who claim programs like this that spy on citizens are consistent with conservative values will continue to claim that when its a Democratic President doing it?

[gondramB]

>>The NYT may be prosecuted under 18 USC 798 - the "Comint" statute.

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both.<<


As a practical matter, it is very difficult to prosecute for a leak if the leaker is a whistle blower. Whatever you think of the program, revealing appears to fall into the whistle blower category.

[andy58-in-nh]

As a practical matter, it is very difficult to prosecute for a leak if the leaker is a whistle blower. Whatever you think of the program, revealing appears to fall into the whistle blower category.

I disagree emphatically. The intelligence program revealed by the Times is unquestionably legal. There isn't any serious doubt about it - both case law and statutory authority support the government. Bank records are not entitled to the same presumption of privacy as phone calls. For the Times to publish what they did was not "whistleblowing" - it was an attempt to subvert the legal action of the US government against an enemy in a time of war.

The leaker, for his or her part, should be shot, but I'll settle for life in prison - if the prison is Gitmo.

[gondramB]

>>The intelligence program revealed by the Times is unquestionably legal. There isn't any serious doubt about it - both case law and statutory authority support the government. Bank records are not entitled to the same presumption of privacy as phone calls.<<

I believe that you are not correct. The law appears to require both cause and notification. This program in contrast appears to examine millions of records without specific cause or notification.

>>A Government authority may obtain financial records under section 3402 (2) of this title pursuant to an administrative subpena or summons otherwise authorized by law only if—

(1) there is reason to believe that the rec­ords sought are relevant to a legitimate law enforcement inquiry;

(2) a copy of the subpena or summons has been served upon the customer or mailed to his last known address on or before the date on which the subpena or summons was served on the financial institution together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry:

[andy58-in-nh]

Sorry, but that provision does not apply in the case of suspected terrorist activities, and has been superceded by, among other things, the USA Patriot Act/CIP program. We're not even talking about domestic banks or depositors here, for whom numerous safeguards exist. For example, federal 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, maintain an electronic record of every search, and more. There is not even the vaguest suggestion that these rules were not followed in the SWIFT case.

Even so, the Supreme Court has squarely held that bank records are not constitutionally protected private information. The government may obtain them without seeking a court warrant, 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.

To suggest that the Federal Government is required to send advance notice of subpoena or summons to suspected terrorists or their associates is so laughable that I doubt even the most addle-brained libertarian would dare make such an argument; although some self-destructive Liberals might.

[gondramB]

>>Sorry, but that provision does not apply in the case of suspected terrorist activities, and has been superceded by, among other things, the USA Patriot Act/CIP program. We're not even talking about domestic banks or depositors here, for whom numerous safeguards exist.<<

I quoted that provision because that's the provision the Washington Times said justified the administrative supeonas that were used. i was pointing out the requirements under the act they cited.

>>To suggest that the Federal Government is required to send advance notice of subpoena or summons to suspected terrorists or their associates is so laughable that I doubt even the most addle-brained libertarian would dare make such an argument; although some self-destructive Liberals might.<<

If we were talking about terrorism suspects, you'd be right. And maybe you are right - the NY Times isn't my first choice for an information source. But the articles so far suggest that program isn't limited to suspected terrorists - that it is quite broad.

[Cementjungle]

I'd argue that any terrorist who didn't already suspect this type of thing was going on isn't smart enough to be much of a threat. Same with the phone tapping

I agree. Look at how long we've had laws in place requiring banks to report cash deposits exceeding $10K in the name of catching drug dealers. I think that law's been around for around 20 years.

[greyfoxx39]

My, aren't we precious?

[Young Scholar]

We are certainly facing a threat, and one that may justify a few extra limitations on civil liberties (preferrably approved by Congress, though temporary exceptions can reasonably be made), but an undefined threat of this sort is not enough to justify special "war powers"--powers that essentially trump normal civil liberties.

[Young Scholar]

I have little love for the New York Times, and I don't support their decision to publish this, but it wasn't (and probably shouldn't be) illegal. Considering how hard the Bush Administration tried to stop this, don't you think they would already be pushing criminal prosecution if it were?

I'm not supporting the Times here; I'm just responding to calls to punish them for something that was legal.

[Texas Eagle]

Desperate times call for desperate measures. Evidently President Bush's wire-tapping program has deeply affected the NYT's ability to communicate directly with its terrorist contacts.

[Texas Eagle]

Correction: Change "wire-tapping" to "eavesdropping".

I know there's no actual wire-tapping going on.