The banking data-mining program exposed by the New York Times and Los Angeles Times on Friday might be legal and it might even have been helpful as an emergency response, but it is more evidence that what was once the freest country in the world is turning into a government run rampant. Worse, it appears many people believe that exposing government overreaching is worse than the overreaching itself.
The program involves having the CIA tap into the vast database of the Society for Worldwide Interbank Financial Telecommunication (SWIFT) a Brussels-based consortium of financial institutions that links some 7,800 banks and brokerages worldwide, to track financial transactions of suspected terrorists and al-Qaida sympathizers.
After the attacks of 9/11, the administration hardly made it a secret that it planned to do a great deal more than had been done in the past to track terrorist financial activity and if possible disrupt or cut off sources of financial support for terrorists. But it kept this program, which marks an unprecedented incursion into the normally confidential world of international banking, a secret for five years.
In part this is because, as industry and government officials noted when the CIA tried to get access to the banking databases in the 1990s, knowledge that the government could access files could undermine confidence in SWIFT’s functions in the international banking system.
Apparently some people in government were concerned about the potential for abuse in the program, explaining the leaks to newspapers.
Queried about the program, government officials called it a success and a vital tool, though they noted only two smallish al-Qaida-connected fish who had been caught in its net. Even if it has been successful at discouraging terrorist attacks, however, that success has come at a high price to American liberties.
One can understand the impulse, after 9/11, to begin this program under a 1977 law that allows the president to assume emergency economic powers. And we have no reason not to believe, as news stories have said, that the program has been refined and narrowed from the broad grab-everything initial approach.
However, there is little or no independent oversight of the program and no court or judge reviews the monthly subpoenas the government sends to SWIFT. While the administration says some members of Congress have been informed, Congress has no oversight.
The administration says it doesn’t violate banking privacy laws because technically SWIFT isn’t a bank. But this is logic-chopping; SWIFT is nothing if not a creature of the banks.
Perhaps most offensive is that the program has been maintained as a secret executive-branch operation for almost five years. If the program has been effective, it would have been easy to get legislation passed authorizing it and setting up procedures, safeguards and oversight mechanisms. That is how things are supposed to be done in a country of laws rather than imperial edicts. It is inappropriate to operate under “emergency” edicts for five years.
Administration spokesmen and some partisans have complained that the press has exposed yet another secret program, tipping off the terrorists as to what we’re up to. But al-Qaida knew it would be a target and changed its financial procedures immediately after 9/11; government spokesmen have admitted this program is useful mainly against amateurs and wannabes.
The major reason the Bill of Rights guaranteed freedom of the press was so the press could keep the public informed about what the government is doing. The founders knew governments like to operate behind a veil of secrecy and to the extent they can do so they tend to become despotic. While some secrecy may be essential, government routinely classifies information it has no business keeping secret from the people who pay the bills.
Now that this massive financial surveillance program has been exposed, Congress should hold hearings and consider whether to end it or to write legislation for procedures appropriate to a nation of laws.