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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, June 28, 2006

The most fact-free accusation yet - the "treason" of the New York Times

An important article today in The Boston Globe reports a self-evidently dispositive fact in the controversy over the "treasonous" disclosure by The New York Times and other newspapers of the Bush administration's financial surveillance program -- namely, that none of those articles disclosed any meaningful operational information that was not already in the public domain:

But a search of public records -- government documents posted on the Internet, congressional testimony, guidelines for bank examiners, and even an executive order President Bush signed in September 2001 -- describe how US authorities have openly sought new tools to track terrorist financing since 2001. That includes getting access to information about terrorist-linked wire transfers and other transactions, including those that travel through SWIFT.

"There have been public references to SWIFT before," said Roger Cressey, a senior White House counterterrorism official until 2003. "The White House is overreaching when they say [The New York Times committed] a crime against the war on terror. It has been in the public domain before."

Indeed, a report that [former State Department official Victor] Comras co-authored in 2002 for the UN Security Council specifically mentioned SWIFT as a source of financial information that the United States had tapped into.

The report by Comras referenced here is the same one cited in my post yesterday to demonstrate that it was already public knowledge that the U.S. has access to and actively monitors financial transactions effectuated through SWIFT. In the Globe article, even Bush's own former high-level terrorism official makes clear that nothing in the Times report disclosed any significant operational information not previously in the public domain. And the Globe article identifies multiple other instances in which similar information was publicly disclosed by the Bush administration itself as a means of boasting about its anti-terrorism record.

I watched probably six or seven news programs since Friday which discussed the traitorus acts committed by the Times, all of which were chock full of shrill accusations that the Times had committed "treason" and deserved criminal prosecution, if not worse ("treason" is, of course, a capital crime, the punishment for which -- as is ingrained in everyone's brain -- is execution, not imprisonment). And yet, I never once heard any of the esteemed journalists or pundits mention any of these facts. While I had known (and previously posted) that President Bush had repeatedly disclosed details about our counter-terrorism efforts in order to win re-election (including our efforts to monitor terrrorists' banking transactions), it was not until I began reading about the issue in the blogosphere yesterday did I learn that it has long been public knowledge that we monitor international banking transactions through SWIFT, among other banking systems.

For anyone who is accusing the Times of "treason," or claiming that they harmed national security, what is the answer to this question:

What, specifically, would a terrorist have been willing to do on June 22 [the day before the banking story was published] that he would not do on June 23 as a result of the Times' article?

The same question has been repeatedly asked, but never answered, with regard to the "treasonous" Times disclosure of the warrantless eavesdropping program:

What, specifically, would a terrorist have been willing to do on December 15 [the day before the NSA story was published] that he would not do on December 16 as a result of the Times article?

Prior to the "treasonous" Times articles, The Terrorists already knew that we were eavesdropping on their international calls and monitoring their banking transactions -- because that information was previously, and repeatedly, put into the public domain, often by the Bush administration and President Bush himself. What the Times revealed is the lack of oversight and checks on these intelligence-gathering activities, not the existence of the activities themselves, which were already well known.

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.

One of the programs to which I subjected myself over the weekend was Chris Wallace's show on Fox. The little panel he assembled talked about the treason of the Times for five minutes or so. Brit Hume snarled angrily the entire time as he ranted about the arrogant and treasonous impulses of the New York Times. Bill Kristol repeatedly advocated criminal prosecution against the Times for helping the terrorists to win The War against us. Mara Liasson spat out meaningless neutralties designed, as always, to show how reasonable she is. And Juan Williams, the only one on the panel to "defend" the Times, did so by stupidly claiming that disclosure of the program was actually a good thing because now The Terrorists know that we are watching the SWIFT program and they can't use it anymore. What a coup for us!

Anyone watching this Fox show (or reading virtually any article on this topic) would simply assume that the Times disclosed super-duper top secret information about how we monitor banking transactions which was not previously known to The Terrorists, and would further assume that the Times article provided a never-before-disclosed blueprint for The Terrorists to evade detection.

And it wasn't just on Fox. Every show I watched on which the question of the Times' treason was playfully bandied about all tacitly assumed that the Times disclosed helpful information to The Terrorists, and the only question was whether they should be hanged, imprisoned, or merely despised by all Decent People for having done so. (Surprisingly, even Kevin Drum operates from the same false assumption that the Times disclosed the never-before-known fact that we monitor SWIFT transactions and makes the same argument as Williams made -- that the Times helpfully took away SWIFT as a financial instrument for terrorists). Except just as was true with the Times "disclosure" of the "Terrorist Surveillance Program," the core factual assumption is plainly false. There was not a single non-public fact disclosed by the Times that would enable The Terrorists to avoid surveillance detection, and nobody ever bothers to identify any such fact when engaging in these wild accusatory rituals.

Yet again, The Boston Globe demonstrates what real journalism is supposed to do -- subject claims by the Government and its loyalists (in this case, claims that the Times disclosed information that will help the terrorists commit terrorist attacks) to skeptical scrutiny, and then report facts which have been concealed that undermine the Government's claim. That's the definition of the core journalistic purpose.

This is not a complicated matter. Nobody who is making these accusations can identify a single specific act that Terrorists would have engaged in before that they will now avoid. That, by itself, does not merely undermine, but destroys, the claim that the Times harmed national security. Any "journalist" who allows those accusations to be made without pointing out that fact are, to put it mildly, acting quite irresponsibly.

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