Secrecy and its limits

July 10, 2006

The Bush administration and its supporters are whaling with unusual abandon on their favorite piñata, The New York Times, for exposing a secret U.S. financial surveillance program. The Times coverage, they claim, will cripple a valuable initiative in the fight against jihadist terrorism. President Bush and Vice President Cheney both have excoriated the paper in solemn tones for putting Americans in danger, while their allies clamor for criminal prosecutions, accusing the paper of pursuing an anti-Bush vendetta at the risk of innocent lives.

That’s rough talk, even under the current overheated rules of civic discourse, but the political goodies that have tumbled out have been worth the effort. The war on terror elbows the war in Iraq from the headlines, the administration is once again associated with anti-terrorist zeal, and its opponents once again look unpatriotic and hamstrung by pointless principles — as useful to a rescue from the burning house we’re told we inhabit as an out-of-date fire extinguisher.

The Times and its supporters have responded by reasserting the media’s duty to report on governmental actions of wide consequence and dubious legality. Bill Keller, New York Times executive editor, and Dean Baquet, his counterpart at The Los Angeles Times, which has also covered the tracking program, co-wrote an open letter in which they discussed trying to “reconcile the obligation to inform with the instinct to protect.”

At the center of the controversy is a secret initiative born soon after Sept. 11, 2001. U.S. agents were granted access to a Brussels-based international bank clearinghouse to monitor movements of money involving suspicious parties. The clearinghouse, a consortium owned by 2,200 organizations and known as SWIFT, handles 11 million transactions a day involving 7,800 institutions worldwide, the Times reported.

The administration claims that exposing the program, which was not explicitly authorized by Congress and appears to stretch, if not rupture, the government’s legal prerogatives, will spook privacy-conscious international bankers. They might then pull back from cooperating, and a valuable window on financial movements, one that purportedly yielded the arrest of the man behind the 2002 Bali bombing, would shut.

Indeed, last week the European Parliament, already chagrined by disclosures that terror suspects were being shipped to secret U.S.-linked prisons in Eastern Europe, voted to demand member governments come clean about the SWIFT arrangements.

So exposure may indeed have costs. But what does that mean about the media’s obligation to respect governmental secrecy?

It’s not an easy question, because we’re dealing with a host of unknowables.

First, there is no government initiative — no matter how intrusive or abhorrent — that we can be certain could never thwart a terrorist attack. Still, some measures lie outside the bounds of the permissible and the legal, and it’s right that we refrain from taking actions, regardless of whether they might “work,” if they would trash core values, undermine traditional protections, wreck the careful balance between citizen and state. That’s why we don’t tap phones based on newspaper subscriptions and don’t take the children of suspected terrorists hostage. (At least I hope not.)

So the program’s effectiveness — even if it could be proven, which it usually can’t — doesn’t necessarily entitle it to proceed secretly and unchallenged.

Second, the benefits and costs of secrecy are hard to gauge, especially when the debate is conducted by two parties — government and media — that have their own interests to protect and yet argue that they are acting solely in the public interest.

True, governmental secrecy is sometimes necessary, but it is always costly. It insulates policymakers from scrutiny and accountability, lets them transform bureaucratic convenience into legal necessity, gives bad ideas freer reign than publicity would tolerate. There’s good reason why our traditions create a strong presumption in favor of open government, and it doesn’t involve appeasing news media. It has to do with the sovereignty of citizens in a democracy.

Third, even on a practical level, who knows when secrecy is desirable since, by its nature, it’s rarely widely debated? If the ultimate objective is to deny jihadist groups access to the world financial system, wouldn’t disclosure be wise, since it would flush them into more reliable, and much less efficient, informal channels? (That would explain why the administration, faced with the Times’ determination to run its story, spoonfed the same story to the Wall Street Journal, which has double the circulation and unrivalled reach in international financial circles.)

The media frequently make mistakes in the way they exercise their power to inform. But governmental insistence on secrecy doesn’t eliminate their duty to decide what to make public; it only makes that decision harder.

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