Following the Money,
and the Rules
EDITORIAL, NYTimes on
the Web, June 24, 2006
After the attacks on 9/11, when the
terrorist threat seemed equally dangerous and amorphous, one of the few clear
strategies for counterattack was to follow the money. Almost everyone,
including this page, urged the Bush administration to be aggressive in shutting
down the flow of cash to terrorist organizations, and to root out the people who
were supplying it.
The administration went to work, and one very useful source of information
turned out to be a banking cooperative known as Swift — Society for Worldwide
Interbank Financial Telecommunication. It routes about $6 trillion a day
among 7,800 financial institutions worldwide. An article by Eric Lichtblau
and James Risen in yesterday's Times — and similar stories in The Wall Street
Journal and The Los Angeles Times — detailed how investigators have made use of
Swift data to track potential terrorist financing. Government officials
say the information has helped capture one important Al Qaeda operative abroad,
and that it has assisted domestic investigations as well.
That sounds like good news. What's worrisome is a familiar refrain.
Despite a compliant Congress, which was eager to give the administration all the
investigative tools it requested, the White House has chosen to operate outside
any real scrutiny, and not to seek explicit authorization for what has clearly
become a permanent program.
In the heightened state of emergency after 9/11, the government began examining
the Swift records with the help of general administrative subpoenas, which are
basically permission from one part of the executive branch to another. Now
it is nearly five years later, and nothing has changed. Investigators have
examined the international money transfers of thousands of Americans, apparently
without ever trying to get a court order or warrant to do the searches.
And Congress, as usual, has never exercised any oversight.
A few members were briefed on the program, and a few more told about it once it
became clear that newspapers were preparing an article. But the briefings
tend to become a trap in which those who are informed about what is going on are
required under security rules not to talk about what they know even after it
becomes public. Armed with some knowledge, they become more impotent than
when they were completely in the dark.
One danger of a never-ending government investigation into people's financial
transactions is mission creep. A Treasury Department spokesman told The
Times that the information mined from Swift — which includes millions of records
— cannot be used for anything except terrorism searches. But there is
little to guarantee that will continue to be the case.
Congress, which has given the administration many new powers to conduct
terrorism investigations, needs to judge whether this was what it had in mind.
The original Patriot Act made major changes in money-laundering laws that
provided for the use of administrative subpoenas. But the Judiciary
chairman, Arlen Specter, was quoted yesterday as questioning whether their use
in the Swift investigation has been too broad. The committee has already
scheduled an oversight hearing this month, at which Attorney General Alberto
Gonzales is slated to appear. The senators should take the opportunity to
look deeper.
So far, the only check on the executive branch appears to have come from the
Swift executives themselves, who grew increasingly concerned when what they
envisioned to be a short-term program seemed on its way to becoming permanent.
It was at their insistence that the controls the government now cites were put
into place. An outside auditing firm is now used to verify that
investigators have real intelligence leads behind their requests for
information. That is all to the good; it is clear that when it comes to
defending their customers, international banking executives are far more
aggressive than, say, American telephone company executives.
When government agencies are involved in continuing investigations that might
infringe on Americans' privacy, it is important that some outside entity is
keeping track of what is going on. That principle is particularly true
now, when the United States is trying to learn how to live in a perpetual war on
terror.
Investigators will probably need to monitor the flow of money to and from
suspected terrorists and listen in on their phone conversations for decades to
come. No one wants that to stop, but if America is going to continue to be
America, these efforts need to be done under a clear and coherent set of rules,
with the oversight of Congress and the courts.
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