NYT & the SWIFT Program

The New York Times recently published a story, titled Bank Data Sifted in Secret by U.S. to Block Terror, which revealed the existence of a secret U.S. government program dealing with the international banking records, made possible through access to the massive Belgian SWIFT (Society for Worldwide Interbank Financial Telecommunication) network (story here):

Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.

While the program's scope is reportedly limited to analysis of the financial records of "people suspected of having ties to al Qaeda", the program raises questions of legality.

The revelation of this program has been met immediately throughout the U.S. with condemnations from various parties, since the program had reportedly been successfully used in a number of terrorism cases. Furthermore, the SWIFT network -- which deals with financial transaction records from over 200 countries -- does not for the most part include records of American financial transactions.

New York Times executive editor Bill Keller defended the publishing of the story -- which had proceeded despite requests from the White House and various Congressmen for the story not to be published -- saying that he believed the story to be "in the public interest".

The most impassioned rebuke of the story has come from the right, with National Review and The Weekly Standard both publishing scathing criticisms (here and here) accusing the NYT of aiding terrorists and working against the national security interests of the nation. Even among those who supported the Times' earlier outing of the NSA's secret wiretapping and phone record monitoring programs, there has been criticism as many fail to see the SWIFT program as illegal or as a threat to Americans' privacy.

From a political standpoint, publishing this story was probably unwise of the NYT, since there seems to be little interest in the program among Americans (probably mostly due to the fact that most American financial records were not involved in the program). As a result of this lack of interest, Americans will likely not demand any sort of inquiry into the legality of the program, and any possible abuses or illegalities will remain unknown. What the story has done is further enrage certain elements (mostly on the right) who have been pushing for harsher punishment of "leakers", even suggesting bringing criminal charges against reporters who reveal secret government programs.

On a more global scale, however, the outing of the program is much more meaningful. The citizens of the 200+ countries whose records were subject to examination by the U.S. government are much more likely to be concerned with a foreign government having extralegal access to their records. Also, contrary to the claims of critics of the story, there is a potential for abuse of the program that merits consideration, as well as a number of significant questions regarding the program's legality.

Supporters of the story have often cited the Supreme Court decision establishing that bank records held by a third party are not constitutionally protected private information, however there are a number of U.S. and European financial privacy laws concerning the dissemination of such information which may conflict with the program (since the information of Europeans and the European SWIFT network were involved, both U.S. and European laws could be relevant). Also, financial information was accessed through the use of administrative subpoenas, rather than warrants, which effectively removed any judicial oversight from the program. This raises questions of the constitutionality of the program, since individual search warrants are usually required in comparable situations.

While there is not enough detailed information at this point regarding the nature of the program to determine whether or not it runs afoul of the Constitution or other laws, the program could, upon further inquiry, be found to be unlawful. Taken at face value, the program appears to be more legally sound and more useful than the two NSA programs revealed before it, however further inquiry into its nature -- in order to determine its legality -- would be justified.

More as the story develops...