Challenging Times, Challenged Tribunes

On the one hand, you’ve got the New York and Los Angeles Times’ publication of information on how the U.S. government seeks to monitor the international flow of money that might fund terrorism through SWIFT, the “financial industry-owned co-operative supplying secure, standardised messaging services and interface software to 7,800 financial institutions in more than 200 countries.” The Bush Administration performs its investigations pursuant to lawful subpoenas, and there was no evidence that, as of yet, this program has abused anyone’s legitimate rights to privacy.

Were it not for the high stakes involved, these stories would have provoked giant yawns. I’m sure the reporters involved would have preferred these stories be accompanied by some ominous-sounding movie music to give them the sense of drama they otherwise lacked. It would have been far more newsworthy — far more scandalous — if these reporters had come across SWIFT and learned that the U.S. had failed to examine its data.

The most disturbing thing about these stories was, to me, the fact that the government pleaded with the newspapers to withhold the story on national security grounds, and the newspapers refused. As NY Times editor Bill Keller explained it:

We weighed most heavily the Administration’s concern that describing this program would endanger it. The central argument we heard from officials at senior levels was that international bankers would stop cooperating, would resist, if this program saw the light of day. We don’t know what the banking consortium will do, but we found this argument puzzling. First, the bankers provide this information under the authority of a subpoena, which imposes a legal obligation. Second, if, as the Administration says, the program is legal, highly effective, and well protected against invasion of privacy, the bankers should have little trouble defending it. The Bush Administration and America itself may be unpopular in Europe these days, but policing the byways of international terror seems to have pretty strong support everywhere. And while it is too early to tell, the initial signs are that our article is not generating a banker backlash against the program.


A secondary argument against publishing the banking story was that publication would lead terrorists to change tactics. But that argument was made in a half-hearted way. It has been widely reported — indeed, trumpeted by the Treasury Department — that the U.S. makes every effort to track international financing of terror. Terror financiers know this, which is why they have already moved as much as they can to cruder methods. But they also continue to use the international banking system, because it is immeasurably more efficient than toting suitcases of cash.

Keller’s defense seems King Canute-like. The government’s concerns aren’t valid because we say so. There’s no banker backlash. The terrorists know you’re watching them. What’s the big deal? It’s all so “puzzling.” The description of the government’s argument as “half-hearted” sounds like the kind of thing a teenager says. “Yeah, Dad, I heard you, but I didn’t think you really meant it.”

Either Bill Keller is out of his depth, or he’s being less than honest. Is he suggesting that if the Administration had been more “full-hearted,” he would have withheld the story? As it happens, Treasury Secretary John Snow violently disagrees with Keller’s characterization, but either way it’s absurd.

If the SWIFT surveillance program were unlawful, abusive of legitimate privacy expectations, or some kind of subterfuge with an illegitimate purpose, an editor would be perfectly within his or her rights to have dismissed the Administration’s concerns and exposed the wrongdoing. But the Times fails to provide such a justification.

As Keller himself says, “A reasonable person, informed about this program, might well decide to applaud it. That said, we hesitate to preempt the role of legislators and courts, and ultimately the electorate, which cannot consider a program if they don’t know about it.” By the logic of that rationale, any classified program the news media comes to find out about should be publicized, on the sole basis that it is secret.

So, the stories were a bad idea, and are being defended disingenously. But on the other hand, the backlash is disingenous, too.

If you have listened to right-wing talk radio or read any of the affiliated blogs, there is a consensus among this crowd that the NY Times, LA Times and anyone else who published this story should be prosecuted for espionage. Or — the more moderate position — that the reporters and editors should be subpoenaed to provide the names of the leakers, and the leakers should be prosecuted. Resolutions are being issued in Congress condemning the release of the information — and then are being condemned by the bloggers as insufficiently tough. Some have called for the Congress and White House to revoke the press credentials for the NY and LA Times.

As The Nation’s Scott Sherman reports, the notion of prosecuting the press originates from an literal reading of a Red-baiting-era amendment to the U.S. Espionage Act by Commentary writer Gabriel Schoenfeld.

In his research into the 1917 Espionage Act and subsequent espionage statutes, Schoenfeld discovered Section 798 of the US Criminal Code, enacted by Congress in 1950, which reads, “Whoever knowingly and willingly communicates, furnishes, transmits or otherwise makes available to an unauthorized person, or publishes…any classified information…concerning the communication intelligence activities of the United States…shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” (His italics.) This, Schoenfeld believed, was the “completely unambiguous” smoking gun he needed against (reporter James) Risen and the Times–both of whom, he felt, had “damaged critical intelligence capabilities” and undermined national security with the NSA story. Schoenfeld knew when he wrote the essay that no journalist had ever been prosecuted under Section 798, but his purpose was to stiffen the spine of the Justice Department. “The laws governing what the Times has done are perfectly clear,” he concluded. “Will they be enforced?”

Schoenfeld said he unearthed and publicized his interpretation of the law in hopes he would “set in motion a ‘chilling effect,’ however slight….” Schoenfeld is a scholar with a think-tank background, who has said he doesn’t anticipate there will be, in fact, any prosecutions. But his legal theory has become a rallying cry for the right-wing; not just the professional tub-thumpers, who recognize the danger of this approach, but to their loyal readers — the people who vote and who fight for our country.

Hugh Hewitt proudly cites an Iraq-based military blogger, Sgt. T.F. Boggs, who wrote Keller saying this:

You have done something great in your own eyes-you think you have hurt the current administration while at the same time encouraging “freedom fighters” resisting the imperialism of the United States. However, I foresee a backlash coming your way. I wish I had a subscription to your paper so I could cancel it as soon as possible. But alas, that would prove a little tough right now since I am in Iraq dealing with terrorists financed by the very men you are helping.

Thank you for continually contributing to the deaths of my fellow soldiers. You guys definitely provide a valuable service with your paper. Why without you how would terrorists stay one step ahead of us?

Talk about waving the bloody shirt! Sgt. Boggs is perfectly entitled to feel this way, but the way Hewitt and others are using his words clearly is designed to stir up hatred of the NY Times, LA Times and the news media in general. Do they realize that when you start a fire like this, how quickly it can get out of control?

John McIntyre of Real Clear Politics, perhaps incautiously, gives away the game and reveals what this furor really means to the right:

Politically, this is a clear winner for Bush and the GOP. The issue plays to Bush’s strengths and continues to paint the picture of the President as a stalwart fighter, protecting America’s safety while the left-wing press does their best to undermine as many successful anti-terror programs as possible.

The Times and the far left are so completely out of touch with where the country is on national security and terrorism issues they probably thought this disclosure would hurt Bush politically. They are clueless.

It serves the interests of the right-wing to keep this pot boiling until November. Democrats who thought they could win back Congress this year by “nationalizing” the election will now face the same strategy aimed at them — Republicans equating a vote for Democrats to a vote for the traitorous, law-breaking media.

All of this damages the country, and the institutions of liberty that distinguish our country from all others. It seems clear to me that the root of the problem is the carelessness and arrogance of the folks at the top of the media pyramid today. A responsibility comes with the job of running the nation’s most powerful journalistic entities to think through the consequences of the actions one takes — not just on one day’s newspaper, but on the fragile web of rights and permissions that keep a free press free.

History shows that it is all too easy to persuade Americans to give up on these rights. Given the open-ended nature of the war on terror, we could lose those rights for a generation or more. Condemn the right-wing for all that they do to push America in the direction of less freedom, but condemn the intellectually shallow media for giving the right-wing all the ammunition it needs.


5 thoughts on “Challenging Times, Challenged Tribunes

  1. Interesting breakdown of the issue, John, but I think you’ve really come to the wrong conclusion. I can’t imagine that you really believe that the media preserves its rights by not exercising them. From my perspective, this issue is about how the administration wants the ability to frame every issue in the public’s mind exactly how it pleases, and to do this it must erode the legitimacy of the press. It would seem to me that the best way for the press to combat this assault is to continue doing exactly what it is doing, heck, to do even more of it. Always enjoying the site, by the way. All the best.

  2. “It seems clear to me that the root of the problem is the carelessness and arrogance of the folks at the top of the media pyramid today.”

    I couldn’t disagree more. Change it around to close the sentence with “the top of the Executive Branch” and I’d be happy to agree.

    We are not being told enough about what this Administration is doing. Up until recently, we had no idea that Bush was appending “signing statements” to the bills he was signing, statements which say he’ll follow the portions of those laws he likes but will ignore the parts he doesn’t. That is patently not the design of the founders, who clearly intended that the three branches of government be co-equals.

    Moreover, the NSA wiretapping was done in clear violation of the FISA law, generous as it was (72 hours free listening before a warrant is required). The Executive Branch is/has been ignoring law since September 11, 2001.

  3. This post was not meant to excuse the Executive Branch for its excesses, but I have to say that some of these issues transcend any concerns about the current Administration. After 9/11, there was a consensus that our government hadn’t done a good enough job following the money that flows through international banks to fund terrorist cells. The SWIFT program seems completely in line with that consensus. There were no apparent abuses, at least none that the NYT or LAT could find. But what got me interested in writing about this was Keller’s defense (and Baquet’s even though I didn’t go into it here.) I was unimpressed by their reasoning. It’s press narcissism.

    Bush is gone in two and a half years, but presumably the NYT and LAT will still be here, and will still have a role to play in deciding which secrets that are leaked to them they will choose to publish. Keller’s standard seems to be pretty low, and based mostly on slippery subjective factors. The use of the term “half-hearted” struck me as really, really lame. Either an argument makes sense from a national security standpoint or it doesn’t. Keller’s intuition on how the Administration “felt” about it is completely beside the point.

    While I’m no fan of Bush, there’s a problem if we can’t separate him from the legitimate security interests of our government, which are long-term and somewhat outside of politics. There are powers you might not want to give Bush the man, but that nonetheless belong to the institution of the presidency.

  4. If Congress was serious about ending the leaks, they’d zero out the CIA’s budget. Putting journalists in jail would be satisfying in a not so enlightened way, and hanging the leakers would be fine, as far as that goes, but the CIA is, itself, the problem. They don’t do anything worth doing, anymore, if they ever did. But there’re are thousands of them, each trying to figure out some way of running the world without having to bother with standing for election. Bush isn’t the first President they’ve tried to take down, and he won’t be the last.

    It’s something that the standards for proving that the program existed in the first place are significantly more stringent than the standards for declaring that reporting it hasn’t caused any harm. There hasn’t, I notice, been a news story on the effects of leaking it, just a few smarty-pants columns. Wonder why that is?

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