Swift, But Not a Boat

SWIFT, BUT NOT A BOAT….The New York Times and the LA Times both have big stories today about a U.S. program to subpoena records from SWIFT, a Brussels-based network that tracks instructions for international financial transactions. However, instead of issuing subpoenas for individual records, the government has relied on national security letters to scoop up large amounts of data. But how large? The New York Times gets an answer from Stuart Levey, an undersecretary at the Treasury Department:

“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.”

Not a vacuum cleaner? Here’s the LA Times:

Under the program, Treasury issues a new subpoena once a month, and SWIFT turns over huge amounts of electronic financial data….The SWIFT information is added to a massive database that officials have been constructing since shortly after Sept. 11. Levey noted that SWIFT did not have the ability to search its own records. “We can, because we built the capability to do that,” he said.

The LA Times also has this to say about the breadth and sweep of the program:

During the last five years, SWIFT officials have raised concerns about the scope of the program, particularly at the outset, when it was handing over virtually its entire database. The amount of data handed over each month has been winnowed down.

“The safeguards were not all there in September 2001,” Levey acknowledged. “We started narrowing it from the beginning.”

But why has the program been narrowed? The New York Times explains:

By 2003, the cooperative’s officials were discussing pulling out because of their concerns about legal and financial risks if the program were revealed, one government official said….In 2003, administration officials asked Swift executives and some board members to come to Washington. They met with Mr. Greenspan, Robert S. Mueller III, the F.B.I. director, and Treasury officials, among others, in what one official described as “a full-court press.” Aides to Mr. Greenspan and Mr. Mueller declined to comment on the meetings.

The executives agreed to continue supplying records after the Americans pledged to impose tighter controls. Swift representatives would be stationed alongside intelligence officials and could block any searches considered inappropriate, several officials said.

So the scope of the program was narrowed only because SWIFT executives threatened to pull out. The original program, the one the Bush administration wanted to keep going forever, involved turning over “the entire Swift database” according to the NYT and “virtually” the entire database according to the LAT. If that’s not a vacuum cleaner, what is?

POSTSCRIPT: This is probably a pretty good program, although the sources in the two stories are ambivalent about just how effective it’s been. And regardless of whether or not you like national security letters, it appears to be on fairly solid legal ground ? much more solid than the NSA’s warrantless domestic spying program, at any rate.

But, again, the big problem with this is the Bush administration’s insistence that it can conduct this kind of program without congressional approval. Why do we need legislation if the program is (probably) legal without it? Because we have only the Bush administration’s word that they’ll use this database solely for narrowly-targeted terrorism-related investigations ? and human nature being what it is, that promise is likely to be broken at some point. Legislation that mandates appropriate judicial oversight is the way to handle things like this. Remember: Laws, not men.