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A SWIFT Kick in the Head

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By Dan Froomkin
Special to washingtonpost.com
Wednesday, June 28, 2006; 1:40 PM

When asked to back up the White House accusation that a recent New York Times story put American lives at risk by disclosing vital secrets to terrorists, the best press secretary Tony Snow could do yesterday was this: "I am absolutely sure they didn't know about SWIFT."

SWIFT, the Society for Worldwide Interbank Financial Telecommunication, is the international banking cooperative that quietly allowed the Treasury Department and the CIA to examine hundreds of thousands of private banking records from around the world.

But the existence of SWIFT itself has not exactly been a secret. Certainly not to anyone who had an Internet connection.

SWIFT has a Web site, at swift.com .

It's a very informative Web site. For instance, this page describes how "SWIFT has a history of cooperating in good faith with authorities such as central banks, treasury departments, law enforcement agencies and appropriate international organisations, such as the Financial Action Task Force (FATF), in their efforts to combat abuse of the financial system for illegal activities."

(And yes, FATF has its own Web site, too.)

An e-mail from White House Briefing reader Tim O'Keefe tipped me off to just how nutty it is to suggest that SWIFT keeps a low profile. Among other things, he explained, "SWIFT also happens to put on the largest financial services trade show in the world every year," he wrote. "Swift also puts out a lovely magazine ."

Furthermore, as I noted in Monday's column , it has been my personal experience that your garden-variety wire-transfer form mentions SWIFT. Mine warned: "With respect to payment orders executed through SWIFT, the SWIFT operating rules shall govern the payment orders."

I wrote in yesterday's column that in spite of leveling a monstrous charge against the New York Times -- of putting American lives at risk and aiding the enemy -- the White House has never definitively explained how any of these disclosures actually impair the pursuit of terrorists.

The question came up again in yesterday's press briefing , and Snow -- as he did on Friday -- cited SWIFT as Exhibit A. There was no Exhibit B.

"Q Tony, regarding the disclosure last week of the SWIFT monitoring program, I understand the theoretical argument that this impedes the ability to conduct intelligence, but does the White House know for a fact that it's demonstrably changed and lessened the ability --

"MR. SNOW: We took this up yesterday, which is, you're not going to be able to assess definitively within a day. But I think what you're likely to have is negative confirmation in the sense people change their behavior. . . .

"So we really don't have any basis right now for knowing exactly how it's influenced things, but I think it is safe to say that once you provide a piece of intelligence, people on the inside act on it. . . .

"Q I guess what I'm asking is -- and I'm sorry for not being specific enough -- but is there the belief that even though terrorists had clearly been tipped off from the very beginning by the President that there was going to be an aggressive attempt to get as much financial information as possible, that they did not know about the SWIFT Bank?

"MR. SNOW: I am absolutely sure they didn't know about SWIFT. There are -- when you have key government officials around the world saying, we didn't know about it -- there may have been a lot of activity, but it is a program that was not well-known, including among people who have pretty high positions in the banking industry. So, yes, this is not the sort of thing that everybody knew."

At Friday's briefing , Snow actually mocked reporters who suggested that SWIFT was not exactly operating covertly.

"Q But the existence of this organization is no secret. . . .

"MR. SNOW: Are you kidding? Are you talking about Swift? When did you know about Swift before? . . .

"Q Let me ask a follow up. Are you saying that the financial experts in the terrorist ranks would not know about an organization that works for 7,800 different financial institutions in 200 countries?

"MR. SNOW: I'm saying, yes. I think that a lot of people didn't know about the existence of Swift."

Damage Assessment

Scott Shane writes in the New York Times: "Senator Pat Roberts, the chairman of the Senate intelligence committee, asked the director of national intelligence on Tuesday to assess any damage to American counterterrorism efforts caused by the disclosure of secret programs to monitor telephone calls and financial transactions."

The New York Times editorial board writes: "The Swift story bears no resemblance to security breaches, like disclosure of troop locations, that would clearly compromise the immediate safety of specific individuals. Terrorist groups would have had to be fairly credulous not to suspect that they would be subject to scrutiny if they moved money around through international wire transfers."

Liberal blogger Glenn Greenwald writes: "The media is guilty of publishing stories which might harm the political interests of the President, not which could harm the national security of the United States. But Bush supporters recognize no such distinction."

Washington Post media critic Howard Kurtz continues to chronicle the "vitriol being heaped upon the editors" of the New York Times in particular.

Joe Strupp writes for Editor and Publisher: "White House Press Secretary Tony Snow told E&P today. . . . that, no matter what the National Review argues, the Times will not be losing its White House credentials."

Bush's Signing Statements

It's still not really clear what Bush's signing statements amount to. Are they just a bunch of harmless boilerplate inserted into the Federal Register, as the White House is increasingly arguing -- or are they a sign of a massive encroachment on the separation of powers, as critics increasingly fear?

I've put together a pretty extensive review of what we know -- and more significantly, what we don't know and should know -- about signing statements over at my other Web site, NiemanWatchdog.org.

Yesterday's Judiciary Committee hearing on the subject -- a wee glimmer of oversight from an otherwise submissive Congress -- shed a tiny bit of light on the topic.

But for all of Bush's talk of government transparency, the White House is keeping this issue intentionally murky.

That, and the media's coverage of the actual workings of the executive branch pretty much stinks. So much attention is focused on the White House and its nonstop media events and nonanswers -- or on the occasional executive-branch crisis -- that the actual mechanisms of government, and the effect that Bush's tenure has had on them, has gone dramatically undercovered.

Consider, for instance, how little you've read about the effect on the federal government of incompetent political appointees. See Princeton University Professor David Lewis on NiemanWatchdog.

Similarly, how the agencies actually execute -- or fail to execute -- the laws passed by Congress is a bit of a mystery these days.

Is Bush using signing statements simply to record his reservations about the constitutionality of certain provisions -- while enforcing them, nonetheless? Or is he in fact using them to unilaterally ignore laws he doesn't like?

This is discoverable -- through reporting.

But the only attempt I've seen thus far, by Brian Friel in the National Journal, was inconclusive.

Hearing Coverage

Jonathan Weisman writes in The Washington Post: "A bipartisan group of senators and scholars denounced President Bush yesterday for using scores of 'signing statements' to reserve the right to ignore or reinterpret provisions of measures that he has signed into law."

Kate Zernike writes in the New York Times: "A lawyer for the White House said that Mr. Bush was only doing his duty to uphold the Constitution. But Senator Arlen Specter, Republican of Pennsylvania and chairman of the Judiciary Committee, characterized the president's actions as a declaration that he 'will do as he pleases,' without regard to the laws passed by Congress."

Gail Russell Chaddock writes in the Christian Science Monitor: "Testifying for the Bush administration, Michelle Boardman, deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice, said that signing statements serve a 'legitimate and important function' and are not an abuse of power.

" 'Congress should not fear signing statements, but welcome the openness they provide,' she said."

But Specter was not satisfied. Chaddock writes: "After personally negotiating with the White House over issues such as the Patriot Act and the torture ban, he questioned why objections would not have been raised at that time.

" 'Wouldn't it be better as a matter [of] comity for the president to come to the Congress and say: I want these exceptions in the bill,' rather than asserting them in a presidential signing statement, Specter asked.

"When the question was not answered to his satisfaction, he called for answers in writing. ('My office in the Justice Department is flooded,' Ms. Boardman said. 'It will take a week.') . . .

"Pressing the issue, Sen. Edward Kennedy (D) of Massachusetts asked Boardman to provide a list of laws that President Bush has decided not to enforce.

" 'I cannot give you that list,' Boardman said.

" 'No, then who can? Is there any way for the public to know the president has made a judgment that he is not going to enforce a law?' he asked."

Mark Silva blogged for the Chicago Tribune from Tony Snow's off-camera morning gaggle (no transcript publicly available): " 'I've seen a lot of the reporting, that the president is refusing to carry out laws, and he's not,' Snow said, calling the signing statements 'pretty technical exercises and quite often conducted at a high level of lawyerliness, for somebody who is looking very carefully at the language and expressing reservations.' "

Leahy

Here's the prepared statement from Judiciary Committee Democrat Patrick Leahy of Vermont: "We are at a pivotal moment in our Nation's history, where Americans are faced with a President who makes sweeping claims for almost unchecked Executive power. . . .

"[T]ime and again, this President has stood before the American people, signed laws enacted by their representatives in Congress, while all along crossing his fingers behind his back."

Leahy was also less than impressed with the chief witness.

"Today, again, the Department of Justice and the Administration have treated our concerns contemptuously. We will not be joined by the Attorney General -- or even the Deputy Attorney General -- who we confirmed in a bipartisan way. We will not hear from a spokesperson for the White House, although they are all too willing to spin to the press or to friendly audiences. We will not even hear from the acting Assistant Attorney General for the Office of Legal Policy, who we were initially told would be attending. Instead, the Administration is, again, seeking to send forward a young deputy to parrot the Administration's line, not answer our questions, witness our frustration and hear our criticisms."

Boardman

Here is the prepared statement from that young deputy, Michelle E. Boardman : "It is important to establish at the outset what presidential signing statements are not: an attempt to 'cherry-pick' among the parts of a duly enacted law that the President will choose to follow, or an attempt unilaterally to redefine what the law is after its enactment. . . .

"Many constitutional signing statements are an attempt to preserve the enduring balance between co-equal branches, but this preservation does not mean that the President will not enforce the provision as enacted."

Boardman cited several examples of signing statements that were, in fact, in keeping with presidential precedent -- for instance, recording objections to provisions that require congressional committee approval prior to the execution of a law. The Constitution doesn't give Congress that sort of authority.

But Boardman didn't address the unprecedented and sweeping assertions of power in some other signing statements. For instance, according to a scholarly article on signing statements by Phillip Cooper , a Portland State University professor, the top "constitutional objection" raised in Bush's first-term signing statements was his "power to supervise the unitary executive," which he asserted 82 times in his first four years; and the second most common was his "exclusive power over foreign affairs," which he raised 77 times.

Fein

Here's the prepared statement of former Reagan Justice Department official Bruce Fein : "Presidential signing statements are extra-constitutional and riddled with mischief. . . .

"President Bush was harshly criticized by Members of Congress and others over allegations of torture or cruel, degrading, or inhuman treatment of detainees in the war against Afghanistan and international terrorism. The President's lawyers had fashioned legal theories that would justify torture as an inherent Article II power. But Mr. Bush ultimately capitulated to public opinion and Congress and negotiated the Detainee Treatment Act of 2005 as part of a larger Defense Department Supplemental Appropriations. The Act prohibits the Executive in all its branches and agencies from torture or cruel, inhumane, or degrading interrogations whether to obtain foreign intelligence or otherwise. After taking political credit for signing the bill, President Bush issued a statement declaring in substance that he would ignore it when he saw fit as an unconstitutional encroachment on his power to protect 'the American people from further terrorist attacks.' . . .

"While to the layman, the language of the signing statement may seem both Delphic and innocuous, to the initiated the words referring to a unitary executive and Commander in Chief powers clearly signify that President Bush is asserting that he is constitutionally entitle to commit torture if he believes it would assist the gathering of foreign intelligence. President Bush was nullified a provision of statute that he had signed into law and which he was then obliged to faithfully execute."

Fein also suggested: "If all other avenues have proved unavailing, Congress should contemplate impeachment. . . . "

Rosenkranz

Here's the prepared statement from Nicholas Quinn Rosenkranz , a Georgetown University law professor who said that "the recent brouhaha over presidential signing statements is largely unwarranted." But he did endorse H.J. Res. 89 , a House bill introduced just a few days ago that would require the president to notify Congress if he decides to ignore a duly enacted provision of law.

Yoo

Here's the prepared statement from Christopher S. Yoo , a law professor at Vanderbilt University. His view: "First, I believe that the use of Presidential signing statements as legislative history is inherent in the system of checks and balances embodied in our Constitution. Second, I believe that Presidential statutory interpretation is also inherent in the President's role as Chief Executive. Third, I suggest that recognizing Presidential signing statements as legislative history would better promote the democratic process."

Ogeltree

Here's the prepared statement from Charles J. Ogletree , a law professor at Harvard, who is also a member an American Bar Association task force examining the issue of signing statements.

"The unprecedented juxtaposition of President Bush's failure to exercise a single veto, yet issuing more than a hundred signing statements, has created considerable concern, and explains the broad and bipartisan response to his actions. . . .

"One of the fundamental questions posed by these actions is whether the president is using the signing statement in order to expand the authority of the executive branch at the expense of the legislative branch. In other words, is he using the signing statement as a way to declare a law non-binding, without having to face the public scrutiny that comes with a veto, or the possibility of a legislative override? In order to get a clearer sense of whether this is the case, it is necessary to examine very carefully how the signing statements have been used."

The Prognosis

Will anyone take this ball and run with it? I'll keep an eye on the media.

But Jeff Greenfield reports on CNN that there's little stomach for this issue on the Hill.

"I talked with several Republican senators today who were concerned to a greater or lesser degree by this executive power. But in a post 9/11 world and with the midterm elections on the horizon, there doesn't seem that much appetite for any kind of head-on clash between the two political branches of government, especially when the same party controls both."

Line Item Veto

Peter Baker writes in The Washington Post: "President Bush pushed the Senate yesterday to give him and his successors the power to strip special projects out of spending bills, part of a broader political effort to assuage disaffected supporters that he really is a fiscal conservative despite the growth of government on his watch."

Here's the transcript . Ron Hutcheson, now of McClatchy, reported to his colleagues from the scene that the transcript "can't convey the lack of electricity in the room. Even accounting for the subject matter, it was not one of his best efforts."

Wallace Steps Down

Michael Abramowitz writes in The Washington Post: "White House communications director Nicolle Wallace, a voice for more openness with reporters in an often tight-lipped administration, will step down Friday. . . .

" 'She injected a tremendous amount of realism' into the White House, said Wayne Berman, a longtime GOP strategist and Bush supporter."

Some legacy.

White House Leaks

Ken Herman blogs for Cox News Service: "The torrential rains that have some in the DC area thinking about collecting two of each species sent water into the West Wing press room basement area where several news organizations are located."

Rush Limbaugh's White House Visit

After making a few Viagra jokes, conservative radio host Rush Limbaugh yesterday described his Friday visit to the West Wing, which included a private chat with Bush.

Limbaugh was in town to emcee a Heritage Foundation forum on the TV show, "24," which is the darling of conservatives for, among other things, its endorsement of torturing terrorists.

"Went over to the White House and I chatted with the president in the Oval Office, was just the two of us for about 15 minutes, and he said to me, 'Where are the "24" people?' I said, 'They're still over at the media gaggle, they're right behind me.' . . . I am not going to divulge the contents of the discussion. These things are off the record. It was pleasant and highly informative, by the way, on a couple of things."

Afterward came lunch with Karl Rove, and several hours just hanging out in his office. "Now, I've been in Karl's presence not a lot, three or four times, but never for this length of time. I can't tell you how brilliant and educated and informed the guy is."


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