The Wall Street Journal has printed a lengthy explanation of how it came to publish an article about the Swift anti-terror program on June 22. The piece completely vindicates my view, expressed in this post, that the Journal did not bear any responsibility for breaking the story.
In my post, I reasoned that the Journal‘s article relied entirely upon on-the-record sources. Moreover, it is clear that the Administration did not ask the Journal not to publish the story. Accordingly, unlike the New York Times and L.A. Times, we have no clear indication that the paper was prepared to ignore the government’s entreaties and publish over the objection of the Administration.
The editors of the Journal explain:
[T]he facts are that the [New York] Times’s decision was notably different from the Journal’s.
According to Tony Fratto, Treasury’s Assistant Secretary for Public Affairs, he first contacted the Times some two months ago. He had heard Times reporters were asking questions about the highly classified program involving Swift, an international banking consortium that has cooperated with the U.S. to follow the money making its way to the likes of al Qaeda or Hezbollah. Mr. Fratto went on to ask the Times not to publish such a story on grounds that it would damage this useful terror-tracking method.
Sometime later, Secretary John Snow invited Times Executive Editor Bill Keller to his Treasury office to deliver the same message. Later still, Mr. Fratto says, Tom Kean and Lee Hamilton, the leaders of the 9/11 Commission, made the same request of Mr. Keller. Democratic Congressman John Murtha and Director of National Intelligence John Negroponte also urged the newspaper not to publish the story.
The Times decided to publish anyway, letting Mr. Fratto know about its decision a week ago Wednesday. The Times agreed to delay publishing by a day to give Mr. Fratto a chance to bring the appropriate Treasury official home from overseas. Based on his own discussions with Times reporters and editors, Mr. Fratto says he believed “they had about 80% of the story, but they had about 30% of it wrong.” So the Administration decided that, in the interest of telling a more complete and accurate story, they would declassify a series of talking points about the program. They discussed those with the Times the next day, June 22.
This, by the way, may be one reason that the Administration is showing no visible signs of wanting to prosecute the newspapers: the information published by the papers had apparently been declassified before publication.
[UPDATE: Actually, it would be more accurate to say "some of" the information published by the papers had apparently been declassified. We have no way of knowing whether the details published by the New York Times and L.A. Times went beyond the set of talking points that was declassified. On reflection, my guess is that it probably did. But I don't know.]
This in no way morally excuses the New York Times and L.A. Times, who (according to the public statements of their editors) made independent decisions to publish regardless of the Administration’s view. But, if this account is accurate, it probably provides a legal defense to the newspapers against a charge of publishing classified information.
This legal defense would not extend to the original leakers, however. So, while the more rabid among you will probably have to surrender your dreams of prosecuting the papers, we are still in a strong position to move forward with my favored plan of attack: prioritizing the hunt for the leakers — including tossing reporters in the pokey, Patrick Fitzgerald-style, if they refuse to cough up their sources.
Getting back to the story: once the New York Times announced its intent to publish, that is where the Journal got involved. Again, from Journal editors:
Around the same time, Treasury contacted Journal reporter Glenn Simpson to offer him the same declassified information. Mr. Simpson has been working the terror finance beat for some time, including asking questions about the operations of Swift, and it is a common practice in Washington for government officials to disclose a story that is going to become public anyway to more than one reporter. Our guess is that Treasury also felt Mr. Simpson would write a straighter story than the Times, which was pushing a violation-of-privacy angle; on our reading of the two June 23 stories, he did.
We recount all this because more than a few commentators have tried to link the Journal and Times at the hip. On the left, the motive is to help shield the Times from political criticism. On the right, the goal is to tar everyone in the “mainstream media.” But anyone who understands how publishing decisions are made knows that different newspapers make up their minds differently.
Some argue that the Journal should have still declined to run the antiterror story. However, at no point did Treasury officials tell us not to publish the information. And while Journal editors knew the Times was about to publish the story, Treasury officials did not tell our editors they had urged the Times not to publish. What Journal editors did know is that they had senior government officials providing news they didn’t mind seeing in print. If this was a “leak,” it was entirely authorized.
This passage rather cleverly downplays the apparent fact, disclosed in Howard Kurtz’s column the other day, that the Journal‘s Glenn Simpson had indeed been nosing around the Swift program in the weeks preceding the publication of the stories. But, as I have said previously,
for all we know, the Wall Street Journal had no intention of publishing the story once they learned that the program was safe, legal, and effective. They may well have decided — like the Washington Post and the entire blogosphere — that once the New York Times had spilled the beans, it was now news and had to be discussed.
This conclusion is even stronger when we consider what is, in my mind, the crucial distinction between the Wall Street Journal, on one hand, and the New York Times and Los Angeles Times, on the other. Unlike the East and West Coast Timeses, the chances are that the Journal would not have chosen to publish the story if the Administration had asked them to withhold it:
Would the Journal have published the story had we discovered it as the Times did, and had the Administration asked us not to? Speaking for the editorial columns, our answer is probably not. Mr. Keller’s argument that the terrorists surely knew about the Swift monitoring is his own leap of faith. The terror financiers might have known the U.S. could track money from the U.S., but they might not have known the U.S. could follow the money from, say, Saudi Arabia. The first thing an al Qaeda financier would have done when the story broke is check if his bank was part of Swift.
Just as dubious is the defense in a Times editorial this week that “The Swift story bears no resemblance to security breaches, like disclosure of troop locations, that would clearly compromise the immediate safety of specific individuals.” In this asymmetric war against terrorists, intelligence and financial tracking are the equivalent of troop movements. They are America’s main weapons.
This is the key distinction, as I noted in my post:
Merely investigating is not a culpable act until it is coupled with a second act: making the decision to publish over the protest of government officials, even though the investigation reveals that the program is safe, legal, effective, and subject to oversight.
Critically, the Wall Street Journal did not publish over the protest of government officials. By contrast, the L.A. Times and New York Times did.
The left will, of course, simply call the editors of the Wall Street Journal liars. But in my view, their explanation is convincing, and their paper is utterly vindicated — as is my previous analysis.