Shouting “Fire” in a Crowded Theater

Would the New York Times pubish our nuclear launch codes if it acquired access to them because it “may be … a matter of public interest”?

The Bush administration pleaded with the New York Times not to publish its story revealing the existence of a secret government program to track the financial transactions of international terrorists.

The program, headed by the CIA and overseen by the Treasury Department, is known as the “Terrorist Finance Tracking Program” (TFTP) and was begun shortly after the 9/11 terrorist attacks. Under it, government officials trace the international financial transactions of those with suspected ties to Al Qaeda by examing data — only after obtaining an administrative subpoena — of the Society of Worldwide Interbank Financial Telecommunication (SWIFT).

SWIFT is not a financial institution but a Belgian cooperative owned by more than 2,200 organizations that oversees the routing of funds between banks, brokerages, stock exchanges and other institutions. The CIA, under the TFTP, examines mainly wire transfers and other methods of moving money overseas and into and out of the United States. Under the program, for example, the CIA could track funds from a personal bank account of a suspected terrorist in Jordan to a mosque in Philadelphia.

It does not examine most routine financial transactions confined to the United States. The government uses the data for terrorism investigations only, not such things as tax fraud or drug trafficking investigations.

According to legal experts, TFTP is not remotely illegal. The United States Supreme Court ruled in 1976 that the right to privacy does not extend to protect information in the hands of third parties, such as SWIFT, involving financial transactions. Nor do the provisions of the 1978 Right to Financial Privacy Act apply, because SWIFT is not a financial institution.

TFTP has been a very successful tool in the war on terror and has been an important part of the administration’s promise, shortly after Sept. 11, 2001, to include a financial component among its “weapons” to fight terrorists. TFTP led to the capture of the al Qaeda operative known as “Hambali,” who is believed to have planned the bombing of a Bali resort in 2002. It also led to the prosecution and conviction of Uzair Paracha, a Brooklyn man, on terrorism-related charges, for laundering $200,000 through a Karachi bank to assist an al Qaeda terrorist in Pakistan.

The Times admitted that administration officials asked it not to disclose the existence of TFTP and even “enlisted several current and former officials, both Democrat and Republican, to vouch for its value.” (The White House had briefed officials from both parties on the program.) The government warned that disclosing the program would alert terrorists to its existence and severely compromise it. But the Times, in its omniscience and omnipotence, wasn’t impressed and published the article anyway.

The paper’s exective editor, Bill Keller, said, “We have listened closely to the administration’s arguments for withholding this information, and given them the most serious and respectful consideration. We remain convinced that the administration’s extraordinary access to this vast repository of international financial date, however carefully targeted use of it may be, is a matter of public interest.”

So what might be a matter of public interest is sufficient to outweigh what will certainly be a detriment to the public interest? Under Keller’s definition, would any classified information coming into the press’s hands ever be off-limits from public disclosure no matter how damaging to the national interest or dangerous to American lives?

If the mainstream media truly has this attitude toward the publication of highly classified government secrets, we have no choice but to tighten existing laws — assuming they’re not sufficiently tight now — to criminalize such disclosures by the press. The First Amendment is not absolute. Everyone is well aware of Justice Oliver Wendell Holmes’ admonition in Schenck v. United States that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.”

Well, this is a case where the Times has done worse than yelling “fire.” It has given al Qaeda a book of matches with ignition fuel. It is no exaggeration to say that under the false pretense that the public is entitled to this information, the Times has aided and abetted our terrorist enemies in the war on terror. Its actions in exposing this program might very well result in the loss of American lives through attacks that could have been prevented had the existence of the program not been disclosed to the enemy. If so, blood will be on the Times’s vainglorious hands.