The right not to know

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Once more the spoiler. Despite the earnest persuasion of the White House to preserve a useful weapon in the war against the terrorists, the New York Times has revealed the workings of a covert surveillance program, indisputably within the law, to use administrative subpoenas to examine, through a Belgian financial consortium known by the acronym SWIFT, the financing of international terrorism. Once the story was out, the Los Angeles Times and Wall Street Journal covered it as well. Now the program is damaged, perhaps severely so, and the financing of terror is harder to track. This is another unnecessary leak, six months after the New York Times revealed a secret National Security Agency terrorist surveillance program.

In its earlier scoop, the New York Times could reasonably argue legal uncertainty. Not this time. The Supreme Court ruled in United States v. Miller in 1976 that no right to privacy attaches to the type of third-party financial-transaction information SWIFT has provided to the Treasury Department. The Right to Financial Privacy Act, enacted by Congress in 1978 in the wake of United States v. Miller, allows just the administrative subpoenas Treasury has been using. So does the Patriot Act. The SWIFT transactions that Treasury has been examining are international in nature. The searches are specifically targeted at suspected or known terrorists, a "sharp harpoon aimed at the heart of terrorist activity," as Treasury Secretary John Snow puts it. The claim that the rights of American citizens are infringed is irrational, unduly partisan, or both.

The program clearly works. Treasury pointed immediately to the capture of the terrorist known as "Hambali." Hambali, or Riduan Isamuddin, masterminded the 2002 Bali bombings that killed 202 innocent men and women. He has been in U.S. custody since his arrest in 2003 in Thailand, and the SWIFT program was "a vital tool" leading to his capture. The program was crucial to the discovery and conviction of one Uzair Paracha last fall in Brooklyn on charges of providing material support to al Qaeda in Pakistan through money laundering.

Those are merely the two most prominent examples. The program is said to be a primary source ? if not the primary source ? of the U.S. government's understanding of terrorism financing: Who funds it, how they do it, through whom they pass money, how much lead time precedes an attack and other critically useful antiterrorism facts. It provides "a unique and powerful window into the operations of terrorist networks," says Stuart Levey, Treasury Department undersecretary for terrorism and financial intelligence.

Treasury argued its case for weeks, to no avail, to prevent publication in the New York Times, arguing that the program saves American lives and the lives of allies, that the revelation of the program diminishes its usefulness because al Qaeda and other wrongdoers constantly seek information on how Western governments track their activities. The New York Times was not persuaded. Executive Editor Bill Keller made the usual right-to-know argument: "We remain convinced that the administration's extraordinary access to this vast repository of international financial data, however carefully targeted use of it may be, is a matter of public interest."

This is an extraordinary commandeering of public policy from elected officials and the government they administer, committed ostensibly in the name of "the public interest" but more likely stemming from hostility to government as administered by George W. Bush. There is no other persuasive explanation.

We expect that the full resources of the Department of Justice and other federal investigators to be marshaled in the pursuit of whomever the leakers were. They violated their oath to protect classified information in what looks to be one of the least justifiable leaks of a major antiterrorism program to date.

The editors of the New York Times and their like-minded partisans do not understand that sometimes Americans have a right not to know about a government program. Americans have a right not to know because a functional government must ensure that its sensitive covert programs work against al Qaeda and other terrorists committed to destroying America. The survival and safety of all of us hang in the balance.