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.

Friday, September 29, 2006

A pathological need to break the law

When the Bush administration accused The New York Times of gravely damaging national security by revealing the administration's surveillance of SWIFT banking transactions, that accusation made less sense than even most of the administration's other claims of that sort. After all, it has long been known and publicly discussed that the administration was specifically monitoring SWIFT transactions in order to find the terrorists' money trails (what was not known, and what the NYT significantly revealed, is that the surveillance was being undertaken without any judicial or Congressional oversight).

As today's Washington Post reminds us: "When newspapers first reported the program's existence in June, President Bush called the disclosure 'disgraceful.'" But today, the real reason for the Bush administration's desire to conceal these activities was revealed -- it's because American access to these records is illegal under European law. From the same Post article:

A secret U.S. program to monitor millions of international financial transactions for terrorist links violated Belgian and European law and will have to be changed, the Belgian government said Thursday. . .

The decision, announced by Prime Minister Guy Verhofstadt, came as the country's Data Privacy Commission released a 20-page report finding that the Belgium-based Society for Worldwide Interbank Financial Telecommunication, or SWIFT, had improperly turned over data from millions of global financial transactions to U.S. anti-terrorism investigators.

As is always the case, nobody is trying to prevent genuine anti-terrorism measures. Instead, responsible people who believe in the rule of law are simply insisting that those actions comply with the law. As the Post reports: "[Prime Minister] Verhofstadt called the anti-terrorist monitoring 'an absolute necessity' and said U.S. and European negotiators should find a way to bring it into compliance with European law." Put another way, the choice is not (as Bush followers deceitfully claim) between preventing terrorism versus refraining from surveillance. The actual choice is between combating terrorism within the law versus doing so illegally.

Just as significantly, the reason that it is illegal to allow the U.S. Government access to this information is because it fails sufficiently to safeguard privacy rights. As the NYT article reports:

Under European law, companies are forbidden from transferring confidential personal data to another country unless that country offers adequate protections. The European Union does not consider the United States to be a country that offers sufficient legal protection of individual data.

The access which the U.S. demanded was insufficiently selective -- in fact, it appeared to subject virtually all transactions to scrutiny -- and thus did nothing to safeguard the privacy interests of people who have done nothing wrong. For instance: "Such guarantees should have included stronger safeguards that the information was being used only for terrorism investigations, Belgian officials said." Instead: "While Swift did not provide a precise number for the financial transactions that it turned over to American officials, the Belgian investigation said that 2.5 billion records last year alone 'could have been the subject of subpoenas.'"

The U.S, since at least the end of World War II, has issued lists, which people actually took seriously, of countries whose governments provide insufficient liberties and which have inadequate human rights records. Now, we're the ones on those lists issued by other countries, and, as Billmon recently said, the Bush administration has "forfeit(ed) forever its ability to chastise the human rights abuses of others without triggering a global laughing fit." Now that we have vested in the President the power to abduct people and imprison them forever without charges, shouldn't we cease issuing reports which purport to criticize other governments for failing to afford sufficient due process to those accused of crimes?

In virtually every case where the Bush administrations and its followers call for the imprisonment of journalists for reporting on the secret behavior of the administration -- and the SWIFT report prompted some of the most virulent such attacks -- they never identify any actual harm to national security from the reports, because there is none. What they are truly upset about in each case is that their secret lawbreaking was exposed and that they sustained political damage as a result.

And this story reveals, yet again, an almost pathological inability on the part of the Bush administration to operate within the law, even when doing so would not, in any way, impede their stated objectives. What actually seems to be the case is that even when there is no benefit to doing so, they nonetheless choose to operate outside of the law -- they actually prefer that -- because they both resent and reject the notion that something as petty and annoying as the law can limit their power and the Important Work they have to do.

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