Wednesday, July 05, 2006

# Posted 10:00 PM by Ariel David Adesnik  

FULLY LEGAL? SAYS WHO? "Fully legal" is how I described the CIA/Treasury counterterrorism initiative described by the NYT in its controversial article on June 23. But the very sharp and very lovely SC has pointed out that the Times' original article did raise questions about the initiative's legality. Here are the relevant grafs:

The program, however, is a significant departure from typical practice in how the government acquires Americans' financial records. Treasury officials did not seek individual court-approved warrants or subpoenas to examine specific transactions, instead relying on broad administrative subpoenas for millions of records from the cooperative, known as Swift.

That access to large amounts of sensitive data was highly unusual, several officials said, and stirred concerns inside the administration about legal and privacy issues.

"The capability here is awesome or, depending on where you're sitting, troubling," said one former senior counterterrorism official who considers the program valuable. While tight controls are in place, the official added, "The potential [emphasis added] for abuse is enormous."

The program is separate from the National Security Agency's efforts to eavesdrop without warrants and collect domestic phone records, operations that have provoked fierce public debate and spurred lawsuits against the government and telecommunications companies. But all the programs grew out of the Bush administration's desire to exploit technological tools to prevent another terrorist strike, and all reflect attempts to break down longstanding legal or institutional barriers to the government's access to private information about Americans and others inside the United States...

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. Several outside banking experts, however, say that financial privacy laws are murky and sometimes contradictory and that the program raises difficult legal and public policy questions...

Several people familiar with the Swift program said they believed they were exploiting a "gray area" in the law and that a case could be made for restricting the government's access to the records on Fourth Amendment and statutory grounds. They also worried about the impact on Swift if the program were disclosed...

But L. Richard Fischer, a Washington lawyer who wrote a book on banking privacy and is regarded as a leading expert in the field, said he was troubled that the Treasury Department would use broad subpoenas to demand large volumes of financial records for analysis. Such a program, he said, appears to do an end run around bank-privacy laws that generally require the government to show that the records of a particular person or group are relevant to an investigation.

"There has to be some due process," Mr. 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.

Another official said: "This was creative stuff. Nothing was clear cut, because we had never gone after information this way before."

That's a long list of gray areas and possibilities. Perhaps, then, I should've chosen a phrase other than "fully legal". Still, there was no clear instance of illegal behavior, which matters because many people seem to believe that publishing classified information should not be illegal if the point of publication is to expose government abuse.
(2) opinions -- Add your opinion

The New York Times bore at least the moral burden of persuasion to justify blowing wide open a law enforcement operation that by its own admission was successful at catching mass murderers. They had the story for months and presumably had the time to put a lawyer on the issue and come up with a decent argument that the program was in some way illegal. They have done this in the past, most recently with the NSA story by the same two authors.

Yet, here, despite the prominence they gave the story and the obvious questions it would raise, the best the NYT could come up with was vague and unsubstantiated insinuations by anonymous sources. That's awfully weak, and strong evidence that they have no serious case for illegality.

Compare that with this article that actually cites law.

I'll post that link again in a form that might survive the page formatting:

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