Patterico's Pontifications

6/26/2006

The Legality, Safeguards, and Oversight of the Terror Financing Tracking Program

Filed under: Dog Trainer,Scum,Terrorism — Patterico @ 12:17 am



In another post published today, I print a partial transcript of an interview of Doyle McManus, Washington Bureau Chief of the Los Angeles Times, discussing the newspaper’s decision to expose classified details about an effective anti-terror program. Among the editors’ primary concerns in deciding whether to publish the story, McManus says, is whether the program was legal, whether it had adequate safeguards and controls, and whether it was subject to sufficient oversight.

The odd thing is that the articles published by the Los Angeles Times and New York Times indicate that the probable answers to all these questions was “yes” — yet the newspapers decided to publish anyway. The program was indeed determined by government lawyers to be legal, and the papers can’t find an expert to definitively contradict that position. The articles indicate that the program had extensive and effective controls in place. And the intelligence committees of both houses of Congress were fully apprised of the program.

So the program was legal, restrained, and subject to oversight.

And effective.

Which brings me back to the question: what really was the purported justification for publishing these stories?

Since I’m not sure that everyone has really read the New York Times and Los Angeles Times stories, I’d like to summarize the articles’ content concerning the issues of legality, controls, and oversight.

The full details are in the extended entry.

[Extended entry]

The Legality of the Program

The articles indicate that the program was legal. From the New York Times:

Treasury officials said Swift was exempt from American laws restricting government access to private financial records because the cooperative was considered a messaging service, not a bank or financial institution.

But at the outset of the operation, Treasury and Justice Department lawyers debated whether the program had to comply with such laws before concluding that it did not, people with knowledge of the debate said.

The New York Times laid out details concerning the nature of that debate:

In 1976, the Supreme Court ruled that Americans had no constitutional right to privacy for their records held by banks or other financial institutions. In response, Congress passed the Right to Financial Privacy Act two years later, restricting government access to Americans’ banking records. In considering the Swift program, some government lawyers were particularly concerned about whether the law prohibited officials from gaining access to records without a warrant or subpoena based on some level of suspicion about each target.

For many years, law enforcement officials have relied on grand-jury subpoenas or court-approved warrants for such financial data. Since the Sept. 11 attacks, the F.B.I. has turned more frequently to an administrative subpoena, known as a national security letter, to demand such records.

After an initial debate, Treasury Department lawyers, consulting with the Justice Department, concluded that the privacy laws applied to banks, not to a banking cooperative like Swift. They also said the law protected individual customers and small companies, not the major institutions that route money through Swift on behalf of their customers.

The paper quotes some insiders and outside experts as having concerns about “gray areas,” or about the program being within the “letter” of the law but not the “spirit.”

“There has to be some due process,” [banking law expert L. Richard] Fischer said. “At an absolute minimum, it strikes me as inappropriate.”

Several former officials said they had lingering concerns about the legal underpinnings of the Swift operation. The program “arguably complies with the letter of the law, if not the spirit,” one official said.

That a program may be “inappropriate” in the eyes of some, or may cause others to feel that it “complies with the letter of the law, if not the spirit,” is great to know. But these are not declarations of illegality. Nobody affirmatively claims that the program is illegal. Meanwhile, government lawyers are quite confident of the program’s legality:

Treasury officials would not say whether a formal legal opinion was prepared in authorizing the program, but they said they considered the government’s authority to subpoena the Swift records to be clear. “People do not have a privacy interest in their international wire transactions,” Mr. Levey, the Treasury under secretary, said.

OK, so on balance, the program seems to be legal. What about the safeguards in place to prevent abuse?

The Extensive Controls in Place to Prevent Abuse

There were extensive controls in place to prevent abuse. From the New York Times:

The program is grounded in part on the president’s emergency economic powers, [Treasury undersecretary Stuart] Levey said, and multiple safeguards have been imposed to protect against any unwarranted searches of Americans’ records.

For one thing, the program was strictly limited to anti-terrorism operations:

Because of privacy concerns and the potential for abuse, the government sought the data only for terrorism investigations and prohibited its use for tax fraud, drug trafficking or other inquiries, the officials said.

All requests for access to the database are reviewed at a high level, according to the L.A. Times:

[Levey] noted that requests to access the data are reviewed by Treasury’s assistant secretary for intelligence . . .

According to the New York Times, the safeguards have included the participation of non-government personnel, including an outside auditing firm and Swift officials themselves:

Among the program’s safeguards, government officials said, is an outside auditing firm that verifies that the data searches are based on a link to terrorism intelligence.

. . . .

Officials realized the potential for abuse, and soon narrowed the program’s targets and put in more safeguards. Among them were the auditing firm, an electronic record of every search and a form documenting the intelligence that justified each data search. Mr. Levey said the program was used only to search the records of individuals or entities, not for broader data searches.

. . . .

The executives agreed to continue supplying records after the Americans pledged to impose tighter controls. Swift representatives would be stationed alongside intelligence officials and could block any searches considered inappropriate, several officials said. The procedural change provoked some opposition at the C.I.A. because “the agency was chomping at the bit to have unfettered access to the information,” a senior counterterrorism official said. But the Treasury Department saw it as a necessary compromise, the official said, to “save the program.”

Why were controls needed to “to save the program”? Because, as the New York Times and L.A. Times knew, Swift officials were very nervous about the program, which created a tremendous incentive for government to institute controls to keep the Swift officials happy:

Swift executives have been uneasy at times about their secret role, the government and industry officials said. By 2003, the executives told American officials they were considering pulling out of the arrangement, which began as an emergency response to the Sept. 11 attacks, the officials said. Worried about potential legal liability, the Swift executives agreed to continue providing the data only after top officials, including Alan Greenspan, then chairman of the Federal Reserve, intervened. At the same time, new controls were introduced.

The controls have been effective:

Swift and Treasury officials said they were aware of no abuses. But Mr. Levey, the Treasury official, said one person had been removed from the operation for conducting a search considered inappropriate.

“We are not on a fishing expedition,” Mr. Levey said. “We’re not just turning on a vacuum cleaner and sucking in all the information that we can.”

One person conducting an “inappropriate” search in several years of the program’s existence is an excellent track record, and a testament to the strictness of the controls in place.

But what about Congressional oversight?

Congressional Oversight

According to the Los Angeles Times article:

[White House press secretary Tony] Snow said the House and Senate intelligence committees were fully apprised of the program.

And the L.A. Times reports that briefings were more extensive than with the NSA program:

Officials said the administration has briefed congressional intelligence committees on the SWIFT program. In contrast, information on the NSA wiretapping was shared only with key lawmakers. One senior congressional aide said the committees have “a good handle on what the executive branch is doing to track terrorist financing” and are generally supportive of those efforts.

Yes, further and wider briefings were avoided. Barbara Boxer was not told. Would you trust her with this information? Arlen Specter was not informed — and he believes that he needs to be apprised of everything. But guess what?

The American people, [Snow] said, understand that such efforts lose their effectiveness if they are widely known.

In any event, the best way for Congress to “oversee” the executive branch is by passing laws. And, despite the “concerns” that some anonymous officials might have, the program was judged to be legal and in compliance with acts of Congress, as discussed above.

So: the program had strict controls, it was subject to oversight by key Congressional committees, and it was analyzed and determined to be legal.

Explain to me again why it was necessary to blow the program?

6 Responses to “The Legality, Safeguards, and Oversight of the Terror Financing Tracking Program”

  1. So the program was legal, restrained, and subject to oversight.

    And effective.

    Do these items factor into the classification decision?

    actus (6234ee)

  2. Why? Because they could.

    Mark L (dffa7e)

  3. What really gets me is the fact that, five years ago, this crowd was beating the “Bush didn’t do enough to stop terrorists” drum.

    What a collection of horse’s patooties.

    trentk269 (3d3bfe)

  4. Got here from Powerline and you are now third after them, RealClearPolitics.
    Your column is eminently readable. I think McManus, Lichtblau, Risen and Keller , among others should all be subject to the Espionage Act and are traitors.
    They are too young to even know what war IS. They certainly do not understand what they di , or at least the extent of the damage that could take years and thousands of lives to rebuild. I doubt that any of them live in the real world. Keep on training your dog!
    Tom Kubitz
    Freeport, IL

    Tom Kubitz (6983de)

  5. […] Yet, as I have demonstrated, the evidence in all the articles suggests that the program is legal, that it does have adequate safeguards, and that key Congressional committees were briefed. […]

    FullosseousFlap’s Dental Blog » Global War on Terror Watch: Dean Baquet - Why the Los Angeles Times Published the Secret Details of SWIFT Bank Data Anti-Terrorism Program (baa0b4)

  6. […] In other words, it says everything that many of us have been saying for days — but it carries with it the imprimatur of the House of Representatives. The resolution makes a specific finding that the Terrorist Finance tracking program has been conducted in accordance with all applicable laws, regulations, and Executive Orders, that all appropriate safeguards and reviews have been instituted to protect individual civil liberties, and that Congress has been appropriately informed and consulted for the duration of the Program and will continue its oversight of the Program. […]

    Patterico’s Pontifications » Support House Resolution 895 (421107)


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