Controversy regarding The New York Times' decision to publish
There have been discussions on whether The New York Times should be prosecuted for its actions[12][13] for violating the Espionage Act of 1917 and other related federal statutes. In response, some have questioned why The New York Times alone should be singled out for discipline, since The Los Angeles Times and The Wall Street Journal divulged information about the TFTP at the same time.[14]The New York Times itself argued in a June 28, 2006 editorial that its reporting about the TFTP is protected by the First Amendment and serves a vital role, providing "information the public needs to make things right again." The New York Times editorial further argued that terrorists would have to be "fairly credulous" to believe their finances were not being tracked and that the reporting bore "no resemblance to security breaches, like disclosure of troop locations, that would clearly compromise the immediate safety of specific individuals.[15]
Some have also questioned whether the information in the original June 23, 2006 newspaper articles was even secret, despite its U.S. government classification, because of previous newspaper articles discussing SWIFT. Specifically, a 1998 Washington Post article, in the wake of the U.S. embassy bombings, mentioned that the "CIA and agents with Treasury's Financial Crimes Enforcement Network also will try to lay tripwires to find out when bin Laden moves funds by plugging into the computerized systems of bank transaction monitoring services – operated by the Federal Reserve and private organizations called SWIFT and CHIPS – that record the billions of dollars coursing through the global banking system daily."[16] Also, a December 21, 2001 Baltimore Sun article mentioned SWIFT "headquartered in Belgium" and conjectured about the ability of the U.S. National Security Agency "to follow the money through its electronic intercepts of such transactions."[17] Still others have questioned the secrecy of the TFTP because the Bush administration has made public announcements that it planned to track terrorist-related finances. For example, in a speech shortly after the September 11th attacks, George W. Bush elaborated on the Administration's intention to track terrorist funding, saying "if [financial institutions] fail to help us by sharing information or freezing accounts, the Department of the Treasury now has the authority to freeze their bank's assets and transactions in the United States".[18]
However, critics of the decision to disclose the classified program's existence, including U.S. Treasury Secretary John W. Snow, responded by arguing that there is a vast difference between stating general intentions to track terrorist finances and actually revealing the exact means employed to do so. Some of these critics called attention to The New York Times itself making no mention of either SWIFT or the Terrorist Finance Tracking Program in a November 29, 2005 article ironically detailing the Bush administration's apparent lack of progress in tracking terrorist finances.[19] Moreover, in an editorial on the press's obligations in wartime, the Wall Street Journal clarified the basic differences between its approach to the story and that of the "Times." As for Secretary Snow, he disagreed with executive editor of The New York Times Bill Keller's claim that terrorists are now exclusively using "other means"[20] to transfer funds, by stating that terrorists "have continued to [use] the formal financial system, which has made this program incredibly valuable."[21] Testifying before the House Financial Services Subcommittee on Oversight and Investigations on July 11, 2006, Stuart Levey, the Department of the Treasury’s Under Secretary for Terrorism and Financial Intelligence, stated:
"Since being asked to oversee this program by then-Secretary Snow and then-Deputy Secretary Bodman almost two years ago, I have received the written output from this program as part of my daily intelligence briefing. For two years, I have been reviewing that output every morning. I cannot remember a day when that briefing did not include at least one terrorism lead from this program. Despite attempts at secrecy, terrorist facilitators have continued to use the international banking system to send money to one another, even after September 11th. This disclosure compromised one of our most valuable programs and will only make our efforts to track terrorist financing - and to prevent terrorist attacks - harder. Tracking terrorist money trails is difficult enough without having our sources and methods reported on the front page of newspapers."[22]
On October 22, 2006, Public Editor of The New York Times Byron Calame stated that he didn't think the article should have been published. reversing his strong support of the Times in his June 2 column. "I haven't found any evidence in the intervening months that the surveillance program was illegal.... The lack of appropriate oversight—to catch any abuses in the absence of media attention—was a key reason I originally supported publication. I think, however, that I gave it too much weight."[23]
In September 2006, however, the Belgian government declared that the SWIFT dealings with U.S. government authorities were, in fact, a breach of Belgian and European privacy laws. Times Editor Bill Keller responded to Calame’s “revisionist epiphany” in a letter published on November 6, 2006. Keller felt that Calame’s premise that “the press should not reveal sensitive secret information unless there is a preponderance of evidence that the information exposes illegal or abusive actions by the government” set too high a bar. Keller explained that “The banking story landed in the context of a national debate about the concentration of executive power. The Swift program was the latest in a series of programs carried out without the customary checks and balances — in this case, Congressional oversight. Key members of Congress who would normally be apprised of such a program and who would be expected to monitor its safeguards only learned of the program because we did.
