Tuesday, June 27, 2006

Jay Rosen on the SWIFT story 
Jay Rosen, proprietor of one of my regular comment hangouts, Press Think, appeared on Hugh Hewitt's program to discuss the Two Times' revelation of the SWIFT financial transaction surveillance program. The transcript is here.

Here is my response.

Rosen: I certainly felt that the explanations that both papers have given for the judgment call that they made haven't been all that good.

Wow. Either it is against the law to publish classified details of ongoing covert ops or it isn't. Either the SWIFT program itself broke laws or it didn't. No one seems to be arguing either point. It is illegal to rat out our programs, and the SWIFT program was legal.

So where's the "judgement call?"

I do think it's too far to talk about prosecuting the paper.

Watch this: Rosen is going to admit that what the paper did is against the law, that it potentially harmed national security, and further stipulate that newspapers are "not above the law." And yet it's "too far" to talk about prosecuting the paper.

is there some chance that the story could have aided terrorists? I suppose I would say that there probably is some chance of that, yeah. And the Times is not exempt from the laws of the country, no.

Wow. Breathtaking.

What's it going to take, Jay? I mean, any of the rest of us would go to jail for divulging such details in a heartbeat. Sandy Berger got in heap big trouble for doing next to no damage to national security, other than perhaps tampering with records. I'd be sitting in Leavenworth right now if I posted about the SWIFT program on the web. Why? Because I'm not above the law, that's why.

If the Times is not above the law, as you say, then it is by definition not too early to talk about prosecuting them. The only way it is too early to talk about prosecuting them is if you do believe that they are, in fact, above the law that governs the rest of us. Sauce for the goose.

Well, the ability to prosecute the press has been on the books for some time. I think we've talked about this before, and it is a policy decision that successive governments have made that even though it is possible, it would be a bad precedent to set,

Yeah. As opposed to setting the precedent that future newspapers can disregard their basic responsibility as citizens and publish damaging information that assists terrorists with the expectation, basically, of impunity. Setting a precedent that newspapers are, in fact, above the law and beyond prosecution. That's a terrific precedent to set.

Let's see - one precedent causes newspapers to respect the law of the land. The other precedent kills people. It's not that hard a question - if you have any sense of moral balance whatsoever. I guess ethical and moral reasoning just isn't in the curriculum at J-schools these days.

I mean, there's a certain amount of risk in having a free press, but there's always a risk if you are the press in publishing classified information. There's a risk that you're going to get in trouble.

Except that if it never happens, and newspapers expect it never to happen, and that expectation gets worked into the institutional decisionmaking process at news organizations - as it has at the New York Times - it's not much of a risk, is it?

Bill Keller says his amateur reading of the law, and some Times lawyers he spoke with, didn't see much of a risk. Which is precisely why the Times got way too big for its britches, and subverted the right and just role of our accountable officials in three branches of government. The principle of moral hazard is broken here - and the only criteria the Times really considered is whether they will scoop the Washington Post.

And that's wrong.

Well, I don't know that this damaged the anti-terrorism effort.

Well, let's see. Who's in a position to know for sure? The President says it damaged the war effort. The Vice President says it damaged the war effort. The Secretary of the Treasury says it damaged the war effort. The members of the 9/11 commission say it damaged the war effort. John Freakin' Murtha says it damaged the war effort, and advised the New York Times not to publish it.

Is anyone with substantial access to secret information in the war on terror - anyone actually with a relevant fund of information to make an informed assessment - saying there was no damage done?


But Jay Rosen, professor of Journalism at NYU, a self-described anti-Bush "radical" whose only clearance pertains to his bowel movements, has a different opinion.

In fact, I think it's much more likely that the people we're trying to catch know all about this, and have shifted their tactics for that reason.

You think? You think? But you don't know crap, Jay. You have no idea what we were tracking. The people who were in a position to know were dismayed when the program was ruined through exposure. You have no basis whatsoever on which to make that decision. It's pure speculation.

Jay, you're operating so far out of your lane you can't even see the highway from here.

Journalists are supposed to report the facts - not make wild and irresponsible speculations about what we are and are not monitoring. The program was obviously effective enough to nab the Butcher of Bali.


I think they are, and that the Counter-Terrorism Blog basically reported in 2002 that the U.S. was using SWIFT to look at international banking transactions. I would be very surprised if the people running al Qaeda didn't know about that, and there were other ways they could know as well.

So how did we catch Hambali again?

Jay's reasoning is like arguing that we shouldn't prosecute murders committed by drug addicts because they're not as sophisticated as mob hits. That we shouldn't monitor highways for speeders because not every car goes 120 miles per hour.

But yeah, I mean, if you assume they're sophisticated users of the internet, you have to assume that they basically knew the U.S. was trying this, and we know that they were shifting the way they transfer money to other methods. So I don't know if we can automatically assume that there is huge damage.

Amazing. You can assume one thing but you can't assume the other.

Except that people with access to the details of the program, including ongoing monitoring operations, don't have to assume anything. The President, Vice President, Secretary of the Treasury, and congressional leaders all know what we were up to, and what the program was monitoring. And they say different. The only thing I think it's safe to assume is that Jay Rosen is engaging in irresponsible speculation. In fact, his entire argument rests on the premise that despite the unanimous testimony of people who do, in fact, know, that were' not in a position to know.

Reminds me of the more exasperating new-earth creationists desperately trying to reason away the overwhelming evidence that the Earth is more than 6,000 years old by smugly saying "how do you know? Were you THERE?"

In what way is this any different than the Valerie Plame affair? The same people calling for someone to be held accountable for naming a CIA agent should be outraged at the disclosure of an entire classified program.
I'd be happy to join a class action lawsuit against the NYT if one can be filed.
I am all for prosecuting the media for publishing Plame's name too, if in fact it was a crime to do so.

It never ceases to amaze me that every time some classified program gets revealed in the press, the liberals rush to say, "well, obviously Al Qaeda must have known we were doing that, so no harm done."
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