From telephone calls to bank records
By Sean Aqui | Related entries in Breaking News, Law, News, The War On TerrorismThe big revelation in today’s papers are that the government has been monitoring a huge international database of financial transactions, looking for evidence of terrorist funding so they can trace it and shut it down.
The program is limited, government officials say, to tracing transactions of people suspected of having ties to Al Qaeda by reviewing records from the nerve center of the global banking industry, a Belgian cooperative that routes about $6 trillion daily between banks, brokerages, stock exchanges and other institutions. The records mostly involve wire transfers and other methods of moving money overseas and into and out of the United States. Most routine financial transactions confined to this country are not in the database.
Nobody should be suprised by this. We know the administration was monitoring phone calls, and we know they were trying to trace terrorist funding. It makes sense that they’d take the same approach to bank records that they took to phone calls.
So is this program another warrantless wiretap program? Yet another power grab by the administration in the name of fighting terror?
Yes and no. As constructed, I have fewer problems with this effort than I do with the eavesdropping program.
First, it’s not warrantless:
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.
They’re just National Security Letters, true, which require very little in the way of factual support. But it’s better than just ignoring the whole warrant/subpoena process. Of course, it appears that the only reason they bothered with subpoenas was because Swift demanded them. But at least they got them.
Second, it’s mostly international records, and there are safeguards to keep the records of American citizens private.
Among the safeguards, government officials said, is an outside auditing firm that verifies that the data searches are based on intelligence leads about suspected terrorists. “We are not on a fishing expedition,” Mr. Levey said. “We’re not just turning on a vacuum cleaner and sucking in all the information that we can.”
The auditing firm is a nice touch. But regardless, I have no problem with scanning foreign transactions. It’s similar to what the NSA was created to do: monitor foreign communications. They don’t need a warrant to do so, because foreigners have no protections under the Constitution.
So I don’t have a big problem with the broad outline of the program. My concerns are smaller.
1. This program, created as a temporary, emergency measure right after 9/11, is becoming entrenched as a permanent tool. If this is going to be a long-term effort, then the program needs to ensure that it takes careful care of individual rights. As one official noted: while tight controls are in place, “the potential for abuse is enormous.” It’s the same problem we run into with other “emergency” powers claimed under the “war” metaphor; they are inherently incompatible with a decades-long fight such as we’re facing with regard to terrorism. We need to find ways to access this data without invoking “emergency” powers that trample on rights.
2. If they’re using an audit firm to ensure that every search is based on intelligence leads, that raises a big question: why do they need to use broad administrative subpoenas? If they know enough to request a record, they should be able to get a narrower warrant that would be far more protective of individual rights. The administration has shown little interest in such balancing measures. But as in the phone database case, it’s not clear why — other than a general desire to operate with as few restrictions as possible.
So while this program bears watching, and probably could use some reforms to make it compatible with long-term use, it’s nowhere near as offensive as the more purely domestic operations that Bush has authorized.
This entry was posted on Friday, June 23rd, 2006 and is filed under Breaking News, Law, News, The War On Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
June 23rd, 2006 at 1:33 pm
Well, now that the Times reported this I don’t think the tin foil heads will have anything to worry about. It will become a useless program as our enemies will now avoid overseas transactions or find some other way to fund thier efforts to kill Americans.
It is a shame because the program is(was?) successful in capturing this jackhole.
I’m all for civil liberties and there has to be some middle ground that will enable our counter terrorism people to safeguard our nation and at the same time not send the conspiracy theorists to thier bomb shelters.
June 23rd, 2006 at 2:28 pm
International banking records – some facts
…
BSphere Buzz
Powerline
Michelle Malkin
Pajamas Media
Captain’s Quarters
Instapundit
The Moderate Voice
Donklephant
Kevin Drum
The blogosphere is buzzing over today’s New York Times report about the “secret” program to access bank transaction …
June 23rd, 2006 at 2:31 pm
Like the stories before it, this isn’t going to help the terrorists much. Swift processes a huge chunk of the world’s financial transactions. Unless terrorists abandon electronic money transfers entirely, they’re going to have trouble escaping surveillance.
And the Swift database isn’t the only tool being used. The FBI uses old-fashioned warrants to gather information on wire transfers and ATM transactions.
I agree on the middle ground. And that middle ground should probably look like this:
1. We identify a terror suspect as the first link in the chain. We’ve got dozens if not hundreds of these already.
2. We obtain narrowly-tailored warrants to delve into all sorts of things about that suspect: phone calls, financial transactions, etc. This builds the case against the suspect while also leading to other suspects.
This requires that the courts and Congress develop a legal standard for what constitutes sufficient evidence to be labeled a “terror suspect”, and at what point a linkage becomes so remote from terror activity that it should stop being followed.
June 23rd, 2006 at 7:45 pm
I’ve said this one before, but here goes again. For all y’all that think it’s cool if the gov’t goes sifting through americans lives and information, so long as the gov’t is looking for foreigners/terrorists/muslims/people of color. But what about domestic terrorism? Oklahoma City Bombing? The Snipers? Both of those cases could have been prevented if there was a sufficient database of registered weapons. Shouldn’t the gov’t then register all gunowners, and be able to locate people on that basis. Better yet set up a database of ballistic profiles of every weapon sold in America? Wouldn’t that help to track killers, criminals, terrorists. And isn’t more likely the smart terrorist might see that the terror doled out on the East Coast during the sniper scare is just as damaging as the much harder task of knocking down a building. Not as flashy, but it gets as much news coverage. I mean after all, if you’re using your gun in a lawful manner, you have nothing to hide, right.
June 25th, 2006 at 6:55 pm
Interesting indeed!!
NZ has law that requires -
1. Banks to declare to RBNZ all international transfers in excess of USD5,000.
2. Travellers are required to declare currency in excess of NZD10,000 on leaving or entering NZ.
Both requirements were the result of international agreements sponsored by the US following 9/11 to curtail funding of “terrorist organisations”.
WHERE YA BEEN???
Oooo!! John, you naughty man you!
June 26th, 2006 at 6:35 pm
probligo,
Not intending to stir the pot, but it seems that the flag on civil rights only goes up for right wingers here when we talk about gun control, then the constitution means something to them. I own a number of guns, but to tell the truth, I’d rather the gov’t know what guns I have, then to have them looking into my phone records and financials, as innocent as any of those activities are.
June 26th, 2006 at 6:43 pm
John – You have no 4th amendment “reasonable expectation of privacy” in your negotiable instruments given over to a 3rd party banker. U.S. v. Miller, 425 U.S. 435. Try to arm yourself with some knowledge of constitutional law prior to using the constitution as a means of partisan attack.
June 26th, 2006 at 8:57 pm
Dos,
You still didn’t answer my question about defending against domestic terrorism by registering weapons. And doesn’t the 4th Admendment apply to phone conversations? I was speaking specifically towards the illegal wire taps and data mining that is occuring, but your right I wrapped this one up in that whole mess, because it seems to be part and parcel of the whole.
So why is it that Right wing individuals refuse to answer this question?