A tremendous number of people are missing a key point on the damage done by the NY Times reporting on the SWIFT program. The theme, as articulated by Dan Froomkin, the Boston Globe, Glenn Greenwald, the MahaBlog, MimiKatz of The Next Hurrah, and Jon Henke of QandO, is that the SWIFT program really was not that much of a secret, and consequently the disclosure by the Times did not harm national security.
Mimikatz is a cipher to me (although I hold his/her co-blogger, The EmptyWheel, in high regard); and arguing against Jon Henke is not a proposition with high intrinsic appeal. However, the rest of that group reliably substitutes rhetoric for reason, so I have to like my chances - here we go.
Let's give Glenn Greenwald a chance to state his side:
That is why not a single person who ever sermonizes righteously about the traitors at the Times can ever identify what ought to be the first fact that is identified when accusing someone of harming national security -- namely, the disclosure of facts which (a) would enable the terrorists to avoid surveillance detection and (b) was not previously known. Those facts simply do not exist, which is why nobody ever identifies them.
Greenwald is relying on false and limited choices - the SWIFT program could be highly effective at limiting the effectiveness of terror groups even if terrorists were perfectly well aware of it and had fully adapted, and even if as a result of those adaptations it never led directly to an arrest.
How so, you wonder? Well, consider the example of our enhanced airport security. It is well-publicized, and I don't believe we have caught a terrorist at a United States airport in years (we have certainly not caught many). Is the program a failure?
Well, I am sure it could be improved. But even as currently operated, it forces terrorists to select different targets and use different tactics; ending it would probably be a bad idea.
Similarly, it may well be the case that terror groups routinely send couriers carrying knapsacks stuffed with twentys and hundreds to manage their finances.
If we arrest such a Qaeda courier, or trail him to his contacts, shouldn't the SWIFT program receive partial credit? After all, it was the SWIFT program that forced Qaeda to adapt and use a courier.
Ron Suskind said exactly this in his "One Percent Solution" (and I thank the Maha, who reliably missed the point). The subject is terrorist's adaptations to electronic surveillance:
Eventually, and not surprisingly, our opponents figured it out. It was a matter, really, of deduction. Enough people get caught and a view of which activities they had in common provides clues as to how they have have been identified and apprehended.
“We were surprised it took them so long,” said one senior intelligence official. …
…The al Qaeda playbook, employed by what was left of the network, its affiliates and imitators, started to stress the necessity of using couriers to carry cash and hand-delivered letters. This slows the pace of operations, if not necessarily their scale, and that was, indeed, a victory. …
An intelligence program can be successful if it detects the enemy. It can also be successful if it deters and disrupts our foe, which the SWIFT program may very well be doing - Suskind thinks so, at least.
So what was the harm of the Times leak if terrorists had already adjusted to SWIFT? Well, if Times Executive Editor Bill Keller is reliable, the Administration gave only a "half-hearted" push to the notion that publication by the Times would prompt the terrorists to change tactics.
Per Keller, "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." If publication results in a termination of the SWIFT program, a whole new route for moving money opens up for terrorists - would that help or hurt them?
In other words, although the Treasury Department (probably) didn't break any U.S. laws, it's quite possible that SWIFT did break some European laws — and that they'll be forced to stop providing information to Treasury unless European laws are changed, a process that's both lengthy and uncertain of success. Read Henry's full post for more detail and more nuance.
So does this mean the Times shouldn't have published this story? The arguments cut both ways. On the one hand, it looks like it might have done real damage to an important anti-terrorism program. On the other hand, it looks like the damage is directly related to the fact that the program probably violated the law — clearly a subject of considerable public interest. On the third hand, it was European law involved, not U.S. law, and the original Times story barely even mentioned possible violation of European law as a motivation for running the story.
I would be thrilled to read a Times editorial explaining that, until they intervened, Bush was trampling European privacy laws merely to protect American lives. Until they write that, I still have the Comedy Channel.
And honestly? I would assume there were some Eurocrats who were perfectly happy to let this program slide by with a wink and a nod, but who won't be able to formally endorse its legality under the relevant European laws. That aligns me with Henry Farrell.
Now, the risk that Euro-sunlight might kill this program was clearly explained to Bill Keller; it was explained in the first Times story; and, although I am not claiming any special insight, I noted it in the first sentence of my first post on this topic, as did Patterico, and in follow-ups.
It's hard to see why this is such a mystery to Dan Froomkin et al. Perhaps Greenwald can perform a quick psychoanalysis of the Left (and Henke, darn him!).
MORE: I relent - to be fair to Mr. Froomkin, he is whacking Press Secretary Tony Snow, who is clinging to the notion that the program had been secret. I can't help Tony, but I'll bet he does not want to stand at the podium and patiently explain that it is mostly European law that we (or the cooperating SWIFTees in Brussels) might be violating. Keller's letter notwithstanding, Treasury Secretary Snow did not exactly belabor that point either - his focus was that yes, we do observe terrorists through SWIFT.
UPDATE: Patterico summarizes arguments and rebuttals here.
THE COVER-UP EXCEEDS THE CRIME: I have corrected a ghastly typo - thilly me.
Scott Shane of the Times picks up the "old news" theme, but makes us laugh with this:
The director of national intelligence, John D. Negroponte, has ordered an assessment of any damage to counterterrorism efforts from the disclosures, but the review is expected to take months, and its findings are likely to remain classified.
"Likely to remain classified" - that means the Times will print it if the Times is exonerated.