In the latest battle between the press and the White House, opinions have tended to break along predictable lines. The ACLU, most Democrats in Congress, and Frank Rich contend that the New York Times did the right thing in revealing government monitoring of international financial transactions through the SWIFT system. Dick Cheney, Republican House members, and a pitchfork-waving mob of talk-show hosts and conservative bloggers think exposing the operation damaged national security without justification. Lumping the recent disclosure together with earlier revelations about the National Security Agency’s domestic eavesdropping program, feverish voices on the right are calling for journalists to be prosecuted for treason.
The first thing to say about this fight is that conservative claims about the media’s supposed motivations in publishing both the NSA and SWIFT stories reflect only ideology and ignorance. Editors at the New York Times and other major American newspapers do not pursue stories of this kind because of animus against the Bush administration or a wish to help terrorists. They struggle mightily with such decisions and often do, in the name of national security, withhold, delay, or modify what they would otherwise publish. The legal basis for prosecuting journalists who reveal classified information is tenuous, and demands to do so betray a fundamental lack of appreciation for the bedrock principle of the First Amendment.
All that said, let me depart from the liberal consensus and argue that the New York Times, while acting in good faith, made the wrong call by printing the SWIFT story. Editors there and at the Los Angeles Times and Wall Street Journal who also had pieces of the scoop should have waited to publish it, at least until they could be more certain that the snooping program was no longer useful.
Newspaper editors tend to be very uncomfortable making complex balancing judgments about the public interest vs. national security and usually end up falling back on the one bright line they do have, the “troop movements” test of whether anyone on our side might be killed as a result of their publishing information. But how should they make a decision in a case like this, where immediate consequences are not at issue? To run with a story with the potential to cause significant harm to the national interest, I’d argue, an editor needs one of two things: a solid claim of public interest, or a sound basis for thinking that a story won’t in fact damage national security. In the case of the SWIFT story, editors at the Times were notably weak in both suits.
The first question editors need to ask might be framed in this way: Is there a good case that the practice or actions we want to disclose are wrong—in terms of law, procedure, or morality? With Abu Ghraib (TheNew Yorker), the CIA secret prisons in Eastern Europe (the Washington Post), and the NSA wiretapping story (the Times again), the answers were clearly yes, yes, and yes. To focus on the last example, the permissibility of warrantless government eavesdropping rested on a far-out (and I would argue specious) legal theory that now faces a challenge in federal courts. Overseers on the congressional intelligence committees were not properly notified, and whether or not the privacy concerns raised should have been decisive, they were significant.
With the SWIFT program, by contrast, claims of illegality, lack of statutory oversight, and invasion of privacy are far less compelling. It’s not clear that the Treasury Department needed a subpoena to obtain the information it has been getting from SWIFT, but it submitted one anyway. Members of Congress were informed about the operation, albeit belatedly in some cases. And while some trained-seal privacy advocates are happy to express “concern” anytime a reporter calls for a quote, there is in legal terms a diminished expectation of privacy in financial transactions that go through a quasi-public infrastructure like SWIFT. Of course, these points are all arguable, but the bottom line is that the public interest in knowing about this program wasn’t that powerful.
Because the story fails to clear the public-interest hurdle easily, the issue becomes: Is the alleged harm genuine? Here, too, there is room for disagreement. Treasury officials point to terrorists caught with the help of SWIFT data, including Hambali, who was behind the Bali bombing. There is no evidence to contradict their assertion that the program continued to be useful in tracking other terrorists. Presumably, members of al Qaida have long assumed that bank transfers, like phone calls, can be traced by authorities. But not all terrorists are diabolical masterminds. Like conventional criminals, many are simply stupid and violent (and incompetent). Yet it’s hard to imagine any terrorist brainless enough to continue moving money through banks internationally now that he knows for certain that all such transactions are transparent to the CIA.
One might contrast the Times’ SWIFT story in this respect with disclosures about another financial spying program in Ron Suskind’s new book, The One Percent Doctrine. As the book reveals, Israeli intelligence officials cooperating with the CIA were able to pre-empt a number of suicide bombings by tracking Western Union cash transfers beginning in 2003. But by late 2004, Palestinian terrorists had cottoned on and quit using Western Union to send money. Suskind didn’t disclose anything harmful, because officials acknowledged that the program had ceased to be useful.
In fairness to the Times, administration officials who tried to talk editors there out of publishing seem to have emphasized a much weaker argument for withholding the SWIFT story—that disclosure would put pressure on European governments to oppose the program. It’s hardly a valid national security argument to say that the public in other democratic countries might reflexively oppose something if they knew we were doing it. That’s a diplomatic problem of Bush’s own making, and he can’t reasonably enlist the press in trying to solve it. In any case, that concern hasn’t been borne out. Few in Europe seem alarmed by, or even much interested in, the SWIFT disclosures. The stronger point is simply that we shouldn’t tip our hand to people trying to kill us.
To publish or not to publish a story like this is seldom an easy decision. But given its relative unimportance to most Americans and Europeans, the absence of apparent wrongdoing on the part of the government, and the potential for it to be helpful to terrorists, the Times might have been wise to put this one on the spike.