Power Line catches The New York Times in yet another case of trying to stretch the truth. The Times had argued that the SWIFT anti-terrorism program wasn’t all that secret – despite the fact that the author of the SWIFT exposé had written a piece last November that decried the lack of a program just like SWIFT.

That’s typical of the NYT these days – the only logic or consistency they need is in attacking Bush – all else is secondary. It doesn’t matter that they just destroyed the very program they lamented didn’t exist less than nine months ago – so long as they can get their politically-motivated “scoops”. The Times is getting caught up in their own web of lies, created in their attempt to provide rationalizations for their irresponsible and foolish actions.

The actions of the Times makes the phrase “journalistic integrity” almost seem like an oxymoron…

Secretary of the Treasury John Snow wrote this letter to The New York Times in response to Bill Keller’s arguments that the Treasury had no serious objections to the SWIFT story published last week:

Mr. Bill Keller, Managing Editor
The New York Times
229 West 43rd Street
New York, NY 10036

Dear Mr. Keller:

The New York Times’ decision to disclose the Terrorist Finance Tracking Program, a robust and classified effort to map terrorist networks through the use of financial data, was irresponsible and harmful to the security of Americans and freedom-loving people worldwide. In choosing to expose this program, despite repeated pleas from high-level officials on both sides of the aisle, including myself, the Times undermined a highly successful counter-terrorism program and alerted terrorists to the methods and sources used to track their money trails.

Your charge that our efforts to convince The New York Times not to publish were “half-hearted” is incorrect and offensive. Nothing could be further from the truth. Over the past two months, Treasury has engaged in a vigorous dialogue with the Times – from the reporters writing the story to the D.C. Bureau Chief and all the way up to you. It should also be noted that the co-chairmen of the bipartisan 9-11 Commission, Governor Tom Kean and Congressman Lee Hamilton, met in person or placed calls to the very highest levels of the Times urging the paper not to publish the story. Members of Congress, senior U.S. Government officials and well-respected legal authorities from both sides of the aisle also asked the paper not to publish or supported the legality and validity of the program.

Indeed, I invited you to my office for the explicit purpose of talking you out of publishing this story. And there was nothing “half-hearted” about that effort. I told you about the true value of the program in defeating terrorism and sought to impress upon you the harm that would occur from its disclosure. I stressed that the program is grounded on solid legal footing, had many built-in safeguards, and has been extremely valuable in the war against terror. Additionally, Treasury Under Secretary Stuart Levey met with the reporters and your senior editors to answer countless questions, laying out the legal framework and diligently outlining the multiple safeguards and protections that are in place.

You have defended your decision to compromise this program by asserting that “terror financiers know” our methods for tracking their funds and have already moved to other methods to send money. The fact that your editors believe themselves to be qualified to assess how terrorists are moving money betrays a breathtaking arrogance and a deep misunderstanding of this program and how it works. While terrorists are relying more heavily than before on cumbersome methods to move money, such as cash couriers, we have continued to see them using the formal financial system, which has made this particular program incredibly valuable.

Lastly, justifying this disclosure by citing the “public interest” in knowing information about this program means the paper has given itself free license to expose any covert activity that it happens to learn of – even those that are legally grounded, responsibly administered, independently overseen, and highly effective. Indeed, you have done so here.

What you’ve seemed to overlook is that it is also a matter of public interest that we use all means available – lawfully and responsibly – to help protect the American people from the deadly threats of terrorists. I am deeply disappointed in the New York Times.

Sincerely,

[signed]

John W. Snow, Secretary

U.S. Department of the Treasury

What The New York Times did is worthy of full investigation by the Department of Justice, and they’d be well within their rights to prosecute the Times to the fullest extend of the law. Both the Times and the original leaker of the story should be prosecuted under the Espionage Act or another appropriate statute.

The New York Times is not a branch of the United States government. They do not have the right to determine whether a program is or is not a valid means of conducting warfare. They do not have the right to leak classified information. Even they admit that there is plenty of evidence this program helped capture wanted terrorists and no evidence it harmed civil liberties in this country. Their arrogance led them to irreparably harm our national defense in a time of war.

Bill Keller clearly lied when he insinuated that Secretary Snow made only a “half-hearted” attempt to dissuade Keller from publishing the piece on SWIFT. Furthermore, it was also clear that a bipartisan group of individuals, including two members of the 9/11 Commission personally told the Times not to publish the piece as it would damage our efforts at fighting terrorism.

And the Times published the story anyway.

It’s time to ensure that our national security is not compromised any further by such profoundly irresponsible and deeply unpatriotic actions. The Times put their own self-aggrandizement ahead of the security of this country and its people. That is intolerable. The rights of a free press are balanced by the responsibility to use not use those rights to assist the enemy in a time of war or cause harm to others. There is no question that the Times clearly and unequivocably knew what the impact of this disclosure would be – there is no doubts about its significance to national security, no matter of judgement, and the government was quite accomodating in explaining to the Times why it was in the interests of the country to not disclose this information.

The Times failed to heed those warnings, and now they should pay the price.

UPDATE: Andrew McCarthy makes a persuasive argument that prosecution of the Times is a counterproductive approach. McCarthy argues:

We must, however, confront a hard reality. No one gets a medal for being right. Being right doesn’t necessarily carry the day where the law is concerned. Getting five votes in the Supreme Court does. And there simply are not five votes on the current Court in favor of an interpretation of the Espionage Act that would hold journalists liable. (Caveat: As Gabriel Schoenfeld compellingly argues in Commentary, a prosecution of the Times for the leak of the NSA’s Terrorist Surveillance Program is more promising because a different, narrower statute, Section 798, applies to wrongful disclosures of signals intelligence.)

Some argue that the Supreme Court’s decision in the famous Pentagon Papers case — presciently entitled New York Times Co. v. United States (1971)—stands for the proposition that, while the press may not be subjected to prior restraints against publication, they are vulnerable to subsequent prosecution if what they publish violates the law. This assertion, though, is built on a very thin reed. Strictly speaking, Pentagon Papers is a prior-restraint case—the issue of subsequent prosecution was simply not before the Court.

Concededly, there is dicta supporting the notion of prosecution. But there is also dicta cutting decidedly in the other direction — specifically, the opinion of Justice William O. Douglas, joined by Justice Hugo Black, which would essentially insulate the press, regardless of how atrocious what it publishes may be.

McCarthy further notes:

Let’s remember: The goal here is to stop the leaking. It is not to mount a trophy journalist on a prosecutor’s me-wall. From that practical perspective, making the reporters and their newspaper the targets of prosecution is a double failure. Not only do you probably lose the case in the long run; you also fail to get to the root of the scandal.

Face it: Internal government investigations into leaks go nowhere. The government is too big. Many people are in the loop even on sensitive information, so it is often impossible to pinpoint who the leaker is. When investigators occasionally manage to narrow the suspects down, the leaker typically lies about what he has done (as one would expect in the first place from someone who has betrayed his oath by leaking).

There is only one real way to identify government officials who disclose classified information. You have to get it directly from the journalist who spoke to them.

But if, as the King approach posits, the journalist were made the target of a criminal investigation, he would have a Fifth Amendment privilege to remain silent. That is, by clinging to the slim possibility of successfully prosecuting the journalist, investigators would render legally unavailable the only realistic witness to the public official’s illegal leaking. So in the end, no one would get prosecuted. And the leaks would go merrily on — undeterred, if not emboldened.

I find McCarthy’s logic compelling here. By all rights, the Times should get its ass hauled into court for violation of the Espionage Act. By all rights Bill Keller should be getting frog-marched into a grand-jury room.

Sadly, McCarthy’s right, that just ain’t gonna happen.

Fortunately, he does have a very good suggestion:

There is but a single viable strategy here. The focus of the prosecution must be the public officials who leaked, not the journalists who published. The journalists must be given immunity from prosecution. That would extinguish their privilege against self-incrimination, meaning they could be ordered to reveal their sources to a federal grand jury. There is no legal privilege to refuse. We saw that in the Valerie Plame investigation, in which a prosecutor moved aggressively against a leak that pales beside the gravity of what we are discussing.

If the immunized reporters declined an order to testify, they could be jailed for up to 18 months for contempt-of-court. Jail is an unpleasant place. Recall that it took Judith Miller only a few months there to rethink her obstructionist stance in the Plame case. And the mere specter of imprisonment inspired Matthew Cooper to surrender his source on the verge of a contempt citation.

Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.

Sadly, if you put all the leakers of classified information in jail, you’d have to Washington D.C. into a prison camp.

Then again, perhaps that’s not such a bad idea after all…

Hugh Hewitt has a dissection of Bill Keller’s apologia for The New York Times and the anti-terrorism-funding program leaks. Needless to say, Keller’s stance reflects the deep-seated institutional arrogance we’ve all come to know and love from The New York Times. Keller makes what to me seems a shocking admission:

It’s not our job to pass judgment on whether this program is legal or effective, but the story cites strong arguments from proponents that this is the case. While some experts familiar with the program have doubts about its legality, which has never been tested in the courts, and while some bank officials worry that a temporary program has taken on an air of permanence, we cited considerable evidence that the program helps catch and prosecute financers of terror, and we have not identified any serious abuses of privacy so far. A reasonable person, informed about this program, might well decide to applaud it. That said, we hesitate to preempt the role of legislators and courts, and ultimately the electorate, which cannot consider a program if they don’t know about it.

Does Keller have even the faintest concept of secrecy in wartime? His arguments are completely besides the point. Maybe some amateur military tactician could have had some brilliant insight that would have saved lives at Normandy – would that have made it right for the press to publish our battle plans? Keller admits that there is no evidence of wrongdoing. There’s plenty of evidence that it has helped find terrorists such as Hambali, a key al-Qaeda operative in Southeast Asia.

Keller then makes another utterly disingenious argument:

We weighed most heavily the Administration’s concern that describing this program would endanger it. 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. We don’t know what the banking consortium will do, but we found this argument puzzling. First, the bankers provide this information under the authority of a subpoena, which imposes a legal obligation. Second, if, as the Administration says, the program is legal, highly effective, and well protected against invasion of privacy, the bankers should have little trouble defending it. The Bush Administration and America itself may be unpopular in Europe these days, but policing the byways of international terror seems to have pretty strong support everywhere. And while it is too early to tell, the initial signs are that our article is not generating a banker backlash against the program.

Keller completely misses the point. Because the Times published the existence of this program, terrorists (like Hambali) who once believed their financial transfers to be safe will now change their habits to avoid detection, making them harder to catch. Keller had no right to publish information which would directly harm the security of the United States. Keller had no evidence this program was being misused or that it constituted a violation of everyone’s privacy. Keller published the story anyway in the hopes that it would make the Times money.

The press is free only because of those who safeguard that freedom. Keller’s crude attempts at sophistry don’t mask the fact that the public’s right to know in this case pales in comparison to the value of defending this nation against terrorism. Keller wants to argue that he’s being unfairly maligned as “unpatriotic” for this story – which given that it was profoundly unpatriotic for the Times to have revealed this information, he deserves what he’s getting.

The leaker of this program and the Times have unquestionably harmed national security. They have exposed a successful anti-terrorism program and given the enemy valuable intelligence that further hampers our ability to stop terrorism.

They should, and indeed must be prosecuted to the fullest extent of the law.