One of the New York Times’s justifications for exposing the Bush administration’s post-9/11 scrutiny of international banking transactions via access to Swift, the Belgium-based international banking-information system, is that the American people never gave the feds permission to snoop into banking records—even those of suspected Islamist terrorists. Thus, the Times must save the day by alerting us all. But there’s a flaw in this justification. When the Bush administration did ask the American people for permission to scrutinize banking records for terrorist activity, Congress practically shouted yes, without public objection.

Just six weeks after 9/11, Congress overwhelmingly passed the USA Patriot Act. Among other things, the act vastly increased the Treasury Department’s ability to examine both domestic banking transactions and international ones whose activity touches the U.S. for possible terrorist activity, by expanding longstanding tools to uncover money laundering. Federal law now requires all banks and brokerage firms doing business in the U.S. to keep detailed records of new customers and to report any suspicious clients or transactions to the authorities.

Under the Patriot Act, for example, if an individual asks to withdraw, say, $15,000 from his bank account in cash, with no history of similar requests in the past, the bank must send a form to government officials reporting the transaction. What if the customer decides he wants to wire $100,000 to what he claims is a charity or business in, say, Jordan, that the bank cannot verify is legitimate? The bank must report that transaction, too, or it risks severe sanctions, including closure.

Congress and the public clearly understood that such close scrutiny of American banks raised privacy issues when lawmakers first proposed the Patriot Act. But the imperative to stop new terrorist attacks then outweighed worries over banking privacy. Any concern over privacy when it comes to banking is almost absurdly out of place anyway. As anyone who has ever worked in the U.S.-based private banking field knows, international banking in the U.S. in particular is about as private as yelling your name from a rooftop.

But the Patriot Act’s banking provisions remained incomplete. First, under the act, banks generally scrutinize suspicious activity transaction by transaction, based on size and destination of withdrawals and transfers, not by client name (aside from responding to government subpoenas, of course, and making sure that they don’t open accounts for prominent terrorists and sympathizers whose names come up on obvious watch lists and in due-diligence searches of common databases). As a result, a terrorist facilitator in east London could send $3,000 to a would-be attacker living near Miami, so that he could buy a used car and some bomb-making materials. Yet an American bank likely would not flag the transaction as suspicious, since it wasn’t very large and didn’t originate in a suspicious country (and because the bank isn’t tracking either customer’s name).

A second Patriot Act flaw is that the law often generates too much information. Banks flag all kinds of transactions as suspicious, because they don’t want the government to cite them as lax in their controls. But while the feds don’t need to know if former senator Bob Dole is withdrawing thousands in cash—he’s one prominent individual whose bank has reported him—they do need to know if a group of suspected Islamist radicals in Detroit, whose names they haven’t released publicly, is getting a few hundred dollars every month from some obscure Saudi “charity.”

The Swift program, exposed by the Times and other media outlets last week, partly remedied these deficiencies by allowing Treasury officials to search international banking records for the names of suspected and known terrorists without having to release the suspects’ names publicly. The program remedied another deficiency as well, as access to Swift allowed U.S. officials to track suspected terrorists transferring money from, say, Riyadh to Cologne, even if the funds didn’t enter the U.S.

In pursuing the Swift initiative without seeking the authorization of Congress (though it briefed lawmakers and the 9/11 Commission about it on a classified basis), the Bush administration may simply have concluded that it had already won permission to carry out bank surveillance. After all, Swift really just fills in gaps in the massive surveillance program authorized under the Patriot Act (and did so quietly, until the media unconscionably exposed it). Why tell the terrorists what we’re doing to catch them when there’s no legal reason to do so? Moreover, the administration may have reasoned, since Swift is an international system, it’s hard to see how U.S. legislation would apply to it in the first place.

New legislation, or even just a public announcement, might even have scared Swift off. No overseas financial organization wants to appear to fall under the jurisdiction of American officials or lawmakers. In this light, Treasury’s approach, led by the underrated John Snow, seems correct: to seek quiet, multi-lateral cooperation with Swift’s international stewards.

But apparently, the Times and its fellow newspapers have decided they don’t like it when the Bush administration pursues cooperative international solutions to pressing problems.


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