COUNTERCOLUMN: All Your Bias Are Belong to Us

New York Times' Public Editor Barney Calame has published a column defending his paper in revealing the nature and scope of the SWIFT monitoring program.

Let's examine it.

My close look convinced me that Bill Keller, the executive editor, was correct in deciding that Times readers deserved to read about the banking-data surveillance program.

No. To the extent that publishing classified information is in violation of federal law, Bill Keller could not have been correct in so deciding. In so doing, Keller usurped the authority to declassify the program normally held by the executive branch, under responsible and accountable elected officials.

The only people Keller is responsible to is a clan of wealthy Manhattanites.

There is a time and place for a newspaper to blow the whistle on classified information: When the government is acting in violation of the law, for example, or has classified information merely to protect members of government from embarrassment.

Neither is seriously argued here. Indeed, the New York Times itself concedes that neither is the case, and that there was, indeed, adequate congressional oversight.

So what, exactly, is the New York Times' standard? Apparently, there is none. But the law clearly has a standard: It IS a crime to divulge classified information. The courts have even upheld the possibility of an a priori injunction against publishing classified information, though they did set a very high burden on the government to demonstrate that such publishing would do grievous harm to national security.

The courts further held, in the Pentagon Papers case, that they would have no problem with prosecuting those who publish classified information.

Congress passed the secrecy laws. The president signed them. And the courts have upheld their constitutionality, right up to the SCOTUS.

Does the New York Times consider themselves exempt from the law? Apparently so. They recognized no responsibility of restraint. None. They flaunted the law. Again.

Keller again:

And the growing indications that this and other financial monitoring operations were hardly a secret to the terrorist world minimizes the possibility that the article made America less safe.

Minimizes the possibility, Mr. Calame? To what percentage? And what percentage is the Times New Standard? Did you conduct any kind of risk analysis? Did your editors put the probabilities through any kind of arbitrage model of decision-making, other than one viewed through the scrim of their inflated sense of self-importance?

Do they even know how to conduct a risk analysis? No.

And from what sources would they derive the appropriate inputs for their model? None very useful. The relevant information would be almost all classified.

It would be known to Treasury Department officials, of course. Only they know for sure what they're really currently monitoring. The Times arrogated themselves to make their decision based on incomplete information.

So what were the most solid reasons to publish the story?

There was a significant question as to how secret the program was after five years.

So what were the most solid reasons to publish the story?

There was a significant question as to how secret the program was after five years. "Hundreds, if not thousands, of people know about this," Mr. Keller said he was told by an official who talked to him on condition of anonymity.

Calame's reasoning is simply desperate here. Hundreds, if not thousands of people know about everything from the composition of Chobham armor on M1 tanks to Colonel Sander's 11 secret herbs and spices.

That doesn't mean we let tanks fall into enemy hands to allow them to conduct a ballistics analysis on the armor, or plaster the recipe on the internet.

Hundreds, if not thousands of people know what the Times is going to be printing tomorrow, too. That doesn't mean the Times wants to give away their scoops.

Hundreds of thousands of people know what the rules of engagement are in Iraq and anywhere else U.S. troops are stationed.

We don't discuss that, either.

The whole world knows we frequency hop and encrypt traffic on our military radios.

That doesn't mean we don't bother to encrypt anymore. It also means we don't let intact radios or ANCDs fall into enemy hands.

It means we will put soldiers at risk to recover radios at risk of falling into enemy hands.

Hundreds of people - even thousands of people - can still keep a lot of secrets from the enemy. Indeed, they routinely do.

But the Times' own article reveals Calame's assertion that the terrorists knew about the program to be a self-serving lie. Specifically, the Times reporters describe the program specifically as "a closely-held secret." (It was so widely known - and KNOWN to be so widely known, that the Times's source would only speak on background.)

The New York Times is itself self-refuting, because not only do they establish with their own reporting that the program was a closely-held secret - in so many words - but they also stipulate that the program was successful at tracking terrorists, and led to the arrest of the Butcher of Bali (who was, incidentally, also involved in the Bojinka plot of the 1990s.)

This was a well-connected guy, who has apparently cooperated with authorities to nab other terror suspects. If he didn't know he could be tracked via SWIFT, the Times has no reason whatsoever to rule out the possibility that someone, somewhere, wouldn't make the same mistake again. The Times is making assertions here that are simply not - NOT in evidence.

It may be true that terrorists have increasingly taken to transporting large sums of cash by mule. But no one anywhere is arguing that the terrorists are doing so exclusively. Nor does such an argument address the flow of money to so-called "Muslim charities" acting as a front, whether such movement is known or unknown to their donors.

The Times does not know what operations or monitorings were in progress. The Times does not know what intelligence was corroborating the selection of accounts which hadn't moved yet. The Times arrogated the decision to itself, on bad information.

That's like a plumber making a diagnosis of strep throat based on a telephone consultation, and overruling the opinion of the doctor who's right there with the patient. And then prescribing a suppository.

The dog just don't hunt.

The 25 bankers from numerous nations on the Swift board of directors, and their predecessors going back to 2001, knew about the arrangement. So did some consortium executives and staff members — a group that probably expanded during this period. Starting in 2003, Swift representatives had to be stationed alongside any government intelligence official searching the data.

Wow. That accounts for maybe 1-2 hundred people - none of whom are likely to be in common terrorist recruiting demographics (e.g., young criminal muslim males with an interest in explosives and jihad. Bankers prefer golfing. Go figure.)

It sure doesn't get us to "thousands."

There is no reason whatever to assume that every terrorist and sponsor of terrorism, as well as every VENDOR who wittingly or unwittingly does business with terrorists, knew the specifics about this program. And if Calame's account is correct here, it was a well-kept secret indeed.

Further support for the conclusion that the Swift program hasn't remained totally hidden from terrorists, or anyone else, emerged last week. A former State Department official who has served on a United Nations counterterrorism group pointed to a 2002 United Nations report noting that the United States was monitoring international financial transactions. Swift and similar organizations were mentioned in the publicly available report, although there were no details. "The United States has begun to apply new monitoring techniques to spot and verify suspicious transactions," the report noted.

Well, no shit. Of COURSE we were monitoring financial transactions. But note that little detail, Mr. Calame, about there not being details.

Also, Mr. Calame, note the difference in readership between one paragraph in an obscure 2002 UN report for bureaucrats, and the general readership of the New York Times.

Now, the Times put the story on the front page. Which means that you have to add to the subscriber base of regular readers the number of people who casually scan the headlines.

A terrorist, or terror sympathizer, with a day job and only a casual interest in the news, is going to see the story and self-select to purchase an article. And forward the piece to his buddies.

(Chances are he's not going to be reading Countercolumn, Mr. Keller.)

The Times's June 23 article "awoke the general public" to the Swift program and "in that sense, it was truly new news," Victor Comras, the former State Department official, wrote on The Counterterrorism Blog last week. "But," he added, "the information was fairly well known by terrorism financing experts back in 2002."

Duh. That's why they're called "experts," Mr. Calame.

There is no reason to suspect that the SWIFT program was common knowledge among terrorists, themselves. In fact, Hamali was captured in 2003 - well after the UN report was published I might add.

There is a big difference between a program being known among a small community of experts and being widely disseminated among the lay population. If there isn't, then obviously we don't need newspapers to disseminate information or to interview experts, because everyone in the readership will already just "know" everything. I mean, we. Just. Know.

The administration has sometimes invited press attention to its effort to track terrorist financing.

To the SWIFT program specifically, genius? No? Then stop making a fool of yourself.

In September 2003, Treasury Secretary John W. Snow and a team of his aides took reporters from The Times and other papers on a six-day tour on a military aircraft "to show off the department's efforts," Mr. Keller and Dean Baquet, the editor of The Los Angeles Times, noted in a joint Op-Ed commentary that appeared yesterday. The aides "discussed many sensitive details of their monitoring efforts, hoping they would appear in print and demonstrate the administration's relentlessness against the terrorist threat," according to the two editors.

Don't you think maybe the information they were discussing wasn't all that sensitive?

Another reason Times editors were right to proceed with the 3,550-word Swift story was the skimpy Congressional oversight of the program.

That's funny. Congress doesn't seem to have much of a problem with it.

Secrecy is vital for intelligence and national security programs

Yes. Hold that thought.

but so is oversight by the courts or elected legislators.

Right. So what members of Congress had specific, detailed knowledge of the Manhattan Project?

The Swift program, however, doesn't seem to have any specific Congressional approval or formal authorization.

No shit, Sherlock. That's because it's, well, secret.

If Congress entered a debate on the merits, and gave Ted Kennedy an hour on the floor, it wouldn't be much of a secret, would it?

Eric Lichtblau, one of the two reporters who wrote the Swift story, told me the administration briefed a limited number of Congressional leaders — apparently from both parties, but not the full intelligence or banking committees — toward the beginning of the program.

Ok, Calame. Show me where in the law the President was obligated to brief the entire intelligence and banking committees.

Now, why would the Administration not brief the entire committees?

A.) Because everybody and his uncle already knows everything about the program thanks to the 2002 UN report (in which case congressional oversight was adequate).

B.) Because the Administration considered the program to be a closely-held secret.

Either way the Times is wrong.

Whether there are official standards established for the Swift program or not, the weak Congressional oversight over the past five years deserved public scrutiny.

Says who? Keller? I don't recall seeing him on a ballot somewhere. What district does he represent? To what voters is he accountable? Who the hell is he to assess the damage done to national security in compromising the program? Based on what qualifications? Has he ever held a secret clearance? Has he ever sat in on a targeting meeting?

Congress had a chance to object. They didn't - at least not publicly. They may have squawked behind closed doors, as it should be. Closed doors.

The most fundamental reason for publishing the article, of course, was the obligation of a free press to monitor government and other powerful institutions in our society.

The press is free to monitor. It is not free to destroy their efforts, willy-nilly. The freedom granted to the press is not absolute, and only a moron would claim that it is. The freedom of the press is subject to a variety of limitations - libel laws being the most obvious example.

The restrictions on posessiong and publishing classified information to the detriment of the national security of the United States is on the statutes and it is a settled matter of law: It is illegal to damage national security by deliberately and willfully publishing properly classified information.

It's on the statutes, it's inherent in the constitutionally recognized duties of the chief executive as the commander-in-chief, and it's been upheld by the Supreme Court of the United States.

"Our default position — our job — is to publish information if we are convinced it is fair and accurate,"

Apparently "responsible" isn't on the list. Or "legal." And damned be anyone who might lose his life as a result of our arrogance and irresponsibility. That just doesn't get weighed.

Fine.

The default position of the attorney general of the United States - his job - is to protect the Republic by enforcing the laws of the land. Let's see him do it. Indict Keller, Sulzberger, and the New York Times.

The question we start with as journalists is not 'why publish?' but 'why would we withhold information of significance?' We have sometimes done so, holding stories or editing out details that could serve those hostile to the U.S. But we need a compelling reason to do so."

Umm, Gee. Because it gets people killed?

Just sayin'.

Mr. Keller said the "central argument" senior officials gave against publishing the Swift article was that international bankers would stop cooperating. In his weekend letter, he cited two reasons that argument didn't stop him from publishing the story: First, the consortium provides data to comply with administrative subpoenas issued by the Treasury Department — a legal obligation.

Yeah. Banks in Milan, Brussels, Geneva and Berne have to comply with Treasury Department subpoenas. That makes a lot of sense, becase Belgium, Italy, and Switzerland are all subject to the laws of the United States, right?

You dolts - these are INTERNATIONAL transfers! Is that so hard even for a journalist to understand?

"Second, if, as the administration says, the program is legal, highly effective, and well protected against invasion of privacy, the bankers should have little trouble defending it." So far, Swift hasn't publicly indicated any intention to stop cooperating.

The obtuseness of the Times' reasoning is approaching that of a 2 year old caught with their hand in the cookie jar. Bankers don't have to defend the program against American criticisms. They have to defend it against EUnuchs and populations hostile to US interests in their own countries. What assurances of confidentiality were necessary to secure their full cooperation? And now that the Times has blown the cover on the op, why should we assume that we still have it from all parties?

For me, the most substantial argument against running the story was the acknowledgment that the Swift program was letter-of-the-law legal, had helped catch some terrorists and had a clean record on privacy abuse. But full-bore oversight would have had to be part of that picture to make a convincing case that the program deserved to continue in secrecy, with its access to Swift's mother lode of financial data.

So the Times again concedes that the program violated no one's privacy (though why anyone, anywhere, transferring money internationally could have any reasonable expectation of privacy whatsoever is beyond me.)

Again, Calame, show me the law. Where do federal secrecy laws provide safe harbor for news organizations to publish damaging classified information if entire congressional committees have not passed formal resolutions approving the program. If that's the standard, show it to me in the statutes.

Often obscured in the past week's hot rhetoric over The Times's decision to publish the Swift article were the occasions when the paper's editors have chosen to hold or modify a story when warned by government officials that lives or national security might be endangered.

Yeah, I shot the lady dead, your honor. But in mitigation, I want to point out all the people in the world I didn't shoot.

The best judgment of these two editors served their readers well in the case of the Swift story.

Obviously, readers feel differently.

Splash, out

Jason