NEAL CONAN, host:
This is TALK OF THE NATION. I'm Neal Conan in Washington.
Yesterday, President Bush denounced The New York Times for publishing a story that exposed a secret government program that monitors private banking records. The government uses the information to trace alleged terrorists. The president said that publication of the story, quote, does great harm to the United States of America, and that disclosure of the program, quote, makes it harder to win this war on terror.
On Sunday, Republican congressman Peter King, the chairman of the House Homeland Security Committee, said, quote, we're at war, and for the Times to release information about secret operations and methods is treasonous.
The Los Angeles Times and The Wall Street Journal also ran the story. The Washington Post was not far behind. According to Rep. King, The New York Times is being targeted because it published a story in December that exposed a secret domestic wiretapping program.
This hour, we'll talk about what the newspapers found out about the secret government program, how it works, and how effective it is to track down terrorists. We'll also ask about the controversy over disclosure of government secrets.
If you have questions about what the program is, how it works, and its effectiveness, give us a call now. The number is 800-989-8255. That's 800-989-TALK. You can also send us e-mail, talk@NPR.org. You can call a bit later in the program if you want to weigh in on the public's right to know and the government's right to keep secrets.
Eric Lichtblau joins us now. He's a reporter at The New York Times Washington bureau. He helped break both last week's story about the government's secret financial monitoring program and last December's story about the National Security Agency's domestic wiretapping, which won a Pulitzer Prize for the Times. He joins us now by phone from his office here in Washington, and thanks very much for being with us.
Mr. ERIC LICHTBLAU (Reporter, The New York Times): Thanks for having me.
CONAN: And before we get on to the legalities of the journalistic stories this issue raises, let's talk about the content of the story itself. What exactly is this secret program? What do they call it? How does it work?
Mr. LICHTBLAU: Well, this is a program that was started immediately after 9/11. The government, principally, the Treasury Department and the CIA, got access to an international database known as SWIFT, which basically routes the bulk of the international banking transactions.
And counterterrorism officials realized that there would be a tremendous value in being able to trace those transactions and used very broad administrative subpoenas to get millions and millions of records at any one time and then have CIA and FBI agents trace through those transactions to look to see if there was a terrorism nexus in particular banking transactions.
CONAN: And SWIFT, which, I guess, is the acronym of the month here in Washington, stands for the Society for Worldwide Interbank Financial Telecommunication. It's based in Brussels, but as I understand, most of the records are here in the United States.
Mr. LICHTBLAU: Right, right. As we reported, the bulk of international transactions from or to the United States are routed through SWIFT, and a smaller portion of transactions that are exclusively in the U.S. also go through SWIFT. The number of American banking records that have been examined and analyzed through this program are believed to total in the thousands, and the number worldwide, the Treasury Department has now acknowledged, is probably in the hundreds of thousands.
CONAN: And this is a private corporation. As I understand, it likes to keep very quiet about what it does. Nevertheless, it said it had no choice but to respond to the government's subpoenas.
Mr. LICHTBLAU: Right. There's a bit of a disagreement on that between the government and SWIFT on that point that we've noticed for the last few days. SWIFT's position is that it was compelled to respond to what it saw as a valid subpoena for these very large volumes of records and that it had really no choice.
The government, from people that I've talked to, certainly saw SWIFT as a willing and eager partner in this, at least at the outset. In the weeks and months after 9/11, the company seemed very willing to hand over virtually unlimited access to its database. In fact, the Treasury Secretary, John Snow, said the other day after the story came out that originally they came - the government came in with what he described as a fairly narrow subpoena. SWIFT came back to them and said we can't give you what you're asking for. Here, why don't you just take everything.
Mr. LICHTBLAU: And as we reported in - beginning in late 2002 and into early 2003, there was some serious disagreement between SWIFT and the government over the continuation of this program. The - some executives at SWIFT became nervous over their corporate and legal liability because this was certainly seen as a very unusual program, and they were threatening to pull out of the program.
They were saying that - there were people saying that they saw this as a temporary emergency measure, understandably, in the wake of 9/11, and there were concerns that it had effectively become permanent. And it was only after meetings with top U.S. officials, including Alan Greenspan and Bob Mueller at the FBI, that the company agreed to stay on, and also after the imposition of tighter controls over the program...
CONAN: Mm-hmm, and...
Mr. LICHTBLAU: ...including the CIA no longer having direct access to the data.
CONAN: And when you say a government subpoenas, were these court-ordered warrants?
Mr. LICHTBLAU: No, these are not court-ordered warrants. These were administrative subpoenas issued by the Treasury Department, by their Office of Foreign Asset Control, which does have subpoena power, but there is no judicial review. If the target of the subpoena wanted to - or the organization that was served on wanted to challenge it in court they could, but that didn't happen here.
CONAN: And that raises the question about - that some in Congress have asked, mostly Democrats, that has to be fair, but they've asked questions about the legality of this program, again, searches without court-ordered warrants.
Mr. LICHTBLAU: Yeah, this seems to be a legally gray area. The Treasury Department and the administration were invoking what is known as the International Emergency Economic Powers Act, which President Bush invoked soon after 9/11, giving him broad presidential authority to use a range of investigative measures to track terrorist financing.
On the other side, you have various privacy restrictions, including the Right to Financial Privacy Act, that was passed by Congress in 1978, which imposes certain restrictions on the process that has to be used to turn over someone's private banking records. It even imposes penalties on banks and institutions that they get around that and disclose information improperly.
So this is a gray area that the government argues that, first of all, these broad emergency powers gave the right to do that. And second of all, that whatever privacy restrictions there are on the books do not apply here for various technical exemptions, including the fact that SWIFT and the government do not consider SWIFT to be a bank or a financial institution under the meaning of the law, so it would not be covered under the Right to Financial Privacy Act. But, you know, there has been a pretty serious legal debate within the administration over the program before it was publicly disclosed and in the days since then.
CONAN: And then that gets us to the question of the program's effectiveness. Does it work? You'd think following the money tends to work.
Mr. LICHTBLAU: Well, you know, we were told about a number of successes. The biggest one, internationally, appears to be the capture of an al-Qaida operative in southeast Asia known as Hambali, who is thought to be the mastermind of the Bali resort attacks in 2002. And what we were told was that the tracing of money - excuse me - for a Middle East group through a second party, an unknown party that received money, led them to be able to discover the location of Hambali in Thailand. He, at that point, was a fugitive.
The successes appear to be bigger internationally than domestically. The one case that we talked about within the U.S. where this program appears to have played a part was the prosecution of a businessman in Brooklyn...
Mr. LICHTBLAU: ...whose family owned a textile firm that was accused of laundering or agreeing to launder $200,000 on behalf of an al-Qaida operative in Pakistan.
CONAN: Let's bring another voice into the conversation: Jonathan Winer is a former U.S. deputy assistant secretary of state for International Law Enforcement back in the Clinton administration. He joins us here in Studio 3. Good of you to join us...
Mr. JONATHAN WINER (Former U.S. Deputy Assistant Secretary of State for International Law Enforcement, Clinton Administration): Happy to be here, Neal.
CONAN: ...today on the program. And same question I just posed to Eric Lichtblau, and that is about effectiveness of this program. It seems if this guy, Hambali, who was involved in the Bali bombings, was nailed, it seems to have done - at least in one case - an important job.
Mr. WINER: Well, it's interesting. The law - the underlying law, the International Emergency Economic Powers Act, when it was written, contemplated being used for investigations in cases of economic, national security emergencies. And that investigative power is not usually focused on, because ordinarily, it's been focused on as a means of freezing assets...
Mr. WINER: ...but that investigative right is right there built into the statute. And when I was in the government, we were constantly looking for ways to enhance our ability to trace transactions internationally. It was the sine qua non, the foundation, of how we would go after international bad guys. So it strikes me - this has the potential of being a very effective mechanism.
CONAN: And the administrative subpoena?
Mr. WINER: Well, the administrative subpoena is implicit in the explicit granting of authority by the Congress to the president and the Treasury Department in that law that I just talked about.
CONAN: Mm-hmm. So this, it seems to you, is an effective and completely legal way to go follow the money?
Mr. WINER: For national security purposes, yes. Now, if you're getting into a law enforcement use, that might be another question or if you're getting into something that wasn't considered to be an emergency. Because the International Emergency Economic Powers Act has that word emergency right there in its name...
Mr. WINER: So to the extent that you're talking about an emergency, a national security threat emanating from overseas, and the right to investigate that, that's there in the statute and that does not require a judicial subpoena. An administrative subpoena is exactly the right that Congress granted the Office of Foreign Asset Control in passing that law.
CONAN: And Eric Lichtblau, before we go to the break, let me ask you. I know that there were consultations between the Times - I guess the other newspapers as well - and the government. The administration certainly did not want you to publish this story.
Mr. LICHTBLAU: Right, the main argument that the administration made was that disclosing the very existence of this program would weaken its effectiveness and would in some ways compromise SWIFT in its cooperative role in this arrangement.
CONAN: And after determination, the Times editors decided to go ahead.
Mr. LICHTBLAU: Yeah, I mean, that was the decision obviously made above my pay grade. But the paper and the top editors felt that this was an important issue in the current public policy debate about the war on terrorism and that the reasons for not publishing were outweighed by the public interest. And I think the main argument on the national security question where the paper came down was that it's commonly known that the government has been keenly interested since 9/11 in tracking terrorist financing.
Mr. LICHTBLAU: President Bush has spoken about this often, as have his top officials. I mean, it is so widely and commonly known that there have been numerous stories and Congressional appearances about the fact that, you know, the terrorists have started moving their money out of financial institutions and banks because they're well aware that the U.S. wants to trace their financial transactions. So this, in the view of the paper, I think was not a secret in any sense.
CONAN: All right. We'll have more questions on this for Eric Lichtblau and Jonathan Winer, a former U.S. deputy assistant secretary of state, when we come back from a short break. And, again, if you'd like to join the conversation, our number is 800-989-8255, 800-989-TALK. The e-mail address is email@example.com. I'm Neal Conan. We'll be back after that break. It's the TALK OF THE NATION from NPR News.
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CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.
Last week, The New York Times, The Los Angeles Times and The Wall Street Journal broke the story of a government secret financial monitoring program. They're taking a lot of heat for it, too. We're talking about how this once secret program works, if it's effective, and if it's legal, also about the controversy over reporting government secrets.
Our guests are Eric Lichtblau. He's a reporter at The New York Times who broke the story. Jonathan Winer, U.S. deputy assistant secretary of state for international law enforcement in the Clinton administration, is also with us.
Of course, you're welcome to join as well: 800-989-8255, if you have questions about the program and whether it's effective, 800-989-TALK. E-mail is firstname.lastname@example.org. And let's get Kim on the line. Kim is calling from Casper, Wyoming.
KIM (Caller): Yes, I am. Thank you, Neal.
CONAN: Go ahead.
KIM: I had a question for Mr. Lichtblau. I'm just curious, the talk of the government calling the press treasonous, that really strikes me deep down as even just a housewife in Middle America. And I wonder how The New York Times and the other papers really respond to those accusations of being treasonous and unpatriotic and such.
Mr. LICHTBLAU: Well, it is obviously a serious charge and, you know, this wasn't a decision the paper took lightly. And I don't think that the other papers who published the story did either. You know, we wrestled with this for many weeks and listened to the government's arguments. In the end, the paper decided that, you know, it felt that this was a story that it had to publish.
You know, we realize that to become now caught up in sort of broader political issues and a broader tension between the administration and the press and, you know, that's unfortunate in a lot of ways. I mean, I'd rather just be reporting the news instead of being on the receiving end of it.
CONAN: Kim, thanks very much.
KIM: Thank you.
CONAN: Let's turn now to David. And David's calling from Tucson, Arizona.
DAVID (Caller): Hi, how's everybody doing?
DAVID: I am constantly wanting to know exactly what the definition of public interest is. I don't understand how the editors think they're in a position to make a decision on publishing this information right now and what they think serving the public interest does.
I can't argue the gentleman's point about the fact that the government has discussed tracking money, et cetera. I think giving the details out on any program that the government has going on trying to track down terrorists when we're trying to stop them, keep them from attacking us again, exactly what is public interest? What are you doing for me by telling me all this information right now?
Mr. LICHTBLAU: Well, I think that there is a debate going on at the moment over, you know, over the war on terrorism and the balance between national security, on the one hand, and privacy interests on the other. We've seen this in any number of cases with the NSA story, with a ruling from the European Union just a few weeks ago about whether or not passenger data could be turned over to American officials. An EU court ruled that it could not be.
There are daily and weekly stories on this difficult balancing act. And, you know, it was the paper's position - again, a decision made far above my level -that this was an important contribution to that public debate and also told quite a bit of information about how we're prosecuting the war on terrorism in a way that the editors felt did not tell the terrorists anything that was not already widely known.
CONAN: Mm-hmm. David, thanks very much for that.
DAVID: You're welcome.
CONAN: I know, Eric Lichtblau, you've got to leave us shortly, but I did want to ask, normally when three and a half newspapers have a story, it's some sort of orchestrated leak. I'm obviously not telling you to tell us who provided you with the information, because I suspect you won't, on the other hand, four newspapers all working on the same story, all at the same time, all ready to publish?
Mr. LICHTBLAU: Yeah, I don't think that's quite what happened here. I mean, I think the appearances might be a little bit deceptive. What the White House has said, I think Tony Snow addressed this just today, was that, you know, we were working on this at a far earlier point for several months. And I think other newspapers then started working on it towards the end, principally the L.A. Times and The Wall Street Journal.
And when it became clear that at least one or two of the organizations were going to go ahead and publish this story, I think there was sort of a rush by everyone to get it into the print, once the editors had made the decision to publish...
Mr. LICHTBLAU: ...and it was a careful decision. You know, we put it on our Web site and I think then the L.A. Times then had it on their Web site an hour or two later and then The Wall Street Journal after that on Thursday evening.
CONAN: Mm-hmm. And I'm just wondering, in the negotiations on whether to publish or not, the Times, I assume, conducted these on its own. It was not some consortium of newspapers?
Mr. LICHTBLAU: Oh, absolutely not. You know, journalism, for better or worse, is a very competitive business and, you know, there's a high premium on having something exclusively. You know, in this case, I think there were other organizations that heard what we were working on and had been working on for some time...
Mr. LICHTBLAU: ...and I think that they, independently, in the course of reporting, came to the same decision we did, which was that this was a story that could and should be published.
CONAN: Eric Lichtblau, we know you've got to run. Thanks very much for your time. We appreciate it.
Mr. LICHTBLAU: Thanks for having me.
CONAN: Eric Lichtblau is a reporter for The New York Times in their Washington bureau and has been involved in breaking both this story about the SWIFT program as it's been called, and the earlier story about warrantless wiretaps by the National Security Agency.
Let's see if we can get another caller on the line - well, first of all, let me ask you, Jonathan Winer, does it strike you as unusual that four newspapers are running down this same story at the same time?
Mr. WINER: Oh, no, more particularly since several of the newspapers had this information for some period of time prior to publishing it.
CONAN: Mm-hmm. Let's see if we can get another caller on the line. And this is Nick. Nick calling us from Hailey in Idaho.
NICK (Caller): Hi, good afternoon.
CONAN: Good afternoon.
NICK: I've got a question for your guests. Can they comment on the practice of halawi(ph), I think it's called, which is an alternative and perilous system of moving money around the world.
CONAN: And virtually invisible, isn't it, Jonathan Winer?
Mr. WINER: Well, the hawala system is a very ancient system, but in recent years it tends to live adjacent to and interact with the formal financial system. If you really want to move funds halfway around the world, it's pretty efficient to have your business be able to in turn have a bank account, move it to another bank account and then have it reenter hawala. Can hawala function without banks? Yes it can. Does it usually? No, it doesn't usually, at least not when you're talking about Europe and the United States.
Hawalas are required to register in the United States and more and more countries. And that registration requirement, which was put into place after September 11th, has been quite important in causing funds which previously didn't get into the formal banking system - didn't get seen there anyway - made them visible.
CONAN: So would you agree with the decision made by the editors of The New York Times that, in fact, by disclosing this program, they weren't telling the terrorists, whoever they may be, anything that wasn't already widely known?
Mr. WINER: Well, as a government official, if I was in government and a newspaper reporter published this, I'd be very unhappy about it because it potentially is going to shut down tracing that I'm doing right now of transactions in real time, because it says, by the way, if you're still moving funds, the United States government has got a very good window on it.
On the other hand, for the last several years, the U.S. government's been saying the terrorists have been moving increasingly to bulk cash, bulk currency, smuggling of bulk currency. That is a big problem. There are other innovations that the federal government's talked about terrorists engaged in. They use multiple mechanisms. It's less convenient for them to use cash.
So the extent that they leave the formal payment system because they don't want to get caught...
Mr. WINER: They may get caught with bulk cash aligned into their underwear. So there are tradeoffs either way. Newspapers do what they do and governments do what they do. Oversight is important. That said, this is potentially a very significant government program that has been likely providing very important information. And if I had been in the government at the time it was initiated, I would have strongly endorsed it and I certainly wouldn't have told any reporters about it.
CONAN: Right. Nick, thanks very much.
NICK: Thank you, sir.
CONAN: Gabriel Schoenfeld joins us now from our bureau in New York, a senior editor at Commentary magazine who wrote an article in their March issue titled, Has the New York Times Violated the Espionage Act? And thanks very much for being with us.
Mr. GABRIEL SCHOENFELD (Senior Editor, Commentary magazine) Pleased to be here.
CONAN: Obviously, you wrote that article not about the most recent story, but about the one last December on the warrantless wiretaps in the National Security Agency. But from your perspective, this is the next story. Is the Times and these other newspapers, are they violating laws?
Mr. SCHOENFELD: Well, I think it's much more unclear in this case. The NSA story involved communications intelligence and there's a separate statute on the books, Section 798, which makes it a crime to disclose communications intelligence secrets. It's a very clear and straightforward law that punishes publication of that kind of material.
But there is no law that would govern publication of these kinds of banking intelligence programs, except for the 1917 Espionage Act, which has never been used to prosecute journalists, was not passed for that reason. And I think it's a very difficult statute to apply to this case. Not to say it can't be done, but I think it would be an uphill slog. So, I think what's more likely to happen is that there'll be a vigorous investigation of the leakers, those in government who provided the secrets to the Times and other newspapers.
And perhaps reporters like Eric Lichtblau will be called to grand juries to testify about who their sources were. And if they refuse to testify, they could, like Judith Miller, end up being cited for contempt of court and sentenced to prison.
CONAN: And Judith Miller, I think, spent just about three months in prison before changing her mind and deciding to testify. That, of course, in the Valerie Plame investigation. Neither of those are what we're talking about here in terms of - well, that was, of course, a leak story, but the leak was coming from the vice president's office.
Mr. SCHOENFELD: That's right.
CONAN: And there is a difference...
Mr. SCHOENFELD: Allegedly.
CONAN: Allegedly, yeah. But, no, I think that's been established by now. Whether that leak originally came from the vice president's office is another issue.
Mr. SCHOENFELD: Right.
CONAN: But getting back to this question about - you, in this article, go back and look at several cases through history. The Pentagon Papers case, the Samuel Loring Morison case, who worked for Jane's Defense Weekly, and none of these cases seem to be exactly spot-on in terms of providing a legal precedent.
Mr. SCHOENFELD: The most relevant case, I think, is the Chicago Tribune case in 1942, right, shortly after the Battle of Midway, when the Tribune, published then by the isolationist Colonel McCormick, published a story strongly suggesting that the United States had succeeded in breaking Japanese naval codes.
Now this was a devastating leak. It threatened to prolong the war. It would cost the lives of thousands of Americans. And the Roosevelt administration very seriously contemplated prosecuting the Chicago Tribune. In fact, the impaneled a grand jury and began to present evidence.
However, they noticed that the Japanese had not changed their codes and evidently had not noticed the story in the Chicago Tribune. So to avoid calling the Japanese attention to the story and to the whole issue, they dropped the issue. They dropped the prosecution and let the story go unnoticed.
CONAN: For fear that if they chose to prosecute, not because they didn't want to prosecute, but the act of prosecuting would sort of confirm the story to the Japanese.
Mr. SCHOENFELD: That's correct. But in this case, those concerns don't apply. So, but it's still not entirely clear to me under what statute they would - the Times could be prosecuted for this latest revelation.
CONAN: And indeed, I mean, the sort of journalistic principle that all of us were raised on, it's the old: you don't publish the date and time that the troop ships are sailing. That sort of thing.
Mr. SCHOENFELD: Well, I'm not sure anymore that that applies. I think the Times, in its recent behavior, might indeed be tempted to publish the date and time the ships are leaving. Because these two stories, cumulatively, the NSA terrorist surveillance program, and the banking story, as we just heard Mr. Winer discuss, were extremely valuable tools in the war on terrorism.
And we're not going to win this war on terrorism, we're not going to deter, capture terrorists using our conventional military. We're going to - it really is an intelligence war. And our ability to track the funds and our ability to listen in on conversations is crucial.
And by blowing these two programs to some degree - according to administration officials and some congressional officials, to a significant degree - the Times has compromised our nation's security.
CONAN: We're talking about journalism and government secrets. You're listening to TALK OF THE NATION from NPR News.
And let's see if we can get another caller on the line. This is Mark. Mark calling us from Silver Lake in Ohio.
MARK (CALLER): Good afternoon. I'm afraid this may be more of a political question than I'd like it to be, but I'm somewhat curious. All the outrage that the administration has expressed over the New York Times publishing this article has been of a real accusatory tone, and suggesting that the Times is guilty of treason.
But they had to get the story from somebody, and somebody likely in the administration. Yet, I've not heard anybody in the administration saying, we're going to find the person or persons who leaked this to the New York Times. Does anybody have a comment on why this might be?
CONAN: Gabriel Schoenfeld?
Mr. SCHOENFELD: Well, that's just not so. The administration, the attorney general, and others have said they are going to look for the leakers within government. If they're in the administration, so be it. If they're in the bureaucracies, they'll look for them there. But...
CONAN: Conceivably the leak could have come from SWIFT too, but...
Mr. SCHOENFELD: It could have come from SWIFT, it could have come from Congress. So, historically these leaks are very difficult to track down and one way to do it is to question the journalists under oath and before a grand jury.
CONAN: It's generally not done. The judge normally doesn't give you that sort of power unless you have pretty good reason for asking a reporter for his sources. In other words, somebody you already suspect. So, they're not going to go into that process probably, unless they have somebody already mind, do you think?
Mr. SCHOENFELD: Well...
MARK: Thanks very much. Great show.
CONAN: Ok. Thanks Mark.
Mr. SCHOENFELD: I think that the terms of the trade are shifting here and that the courts will be more willing to recognize the government's compelling interest in ascertaining the sources, given the gravity of these leaks.
CONAN: Hmm. Jonathan Winer let me bring you back in, as a former government official. Leaks are incredibly frustrating, yet they happen all the time.
Mr. WINER: Every day. Probably every hour of every day, as long as I've been in Washington, and that's over 20 years. There haven't been too many prosecutions though.
CONAN: No, and fewer successful ones.
Mr. WINER: I can't think of any.
CONAN: Can you think of any, Gabriel Schoenfeld?
Mr. SCHOENFELD: Well, I just pointed to the Chicago Tribune story in 1942, but there have been no successful prosecutions of journalists under the Espionage Act and that's, you know, a good thing. These things are historically very rare, and I hope to keep it that way. But I think the Times has really begun pushing the envelope here of what's acceptable in a moment of national peril. And they are courting infringement of the First Amendment because of their reckless conduct.
CONAN: Mm-hmm. Let's get Amy on the line. Amy calling from Lawrence, Kansas.
AMY (CALLER): Hi. So, my question is: why would you think that the terrorist groups don't already know about all this stuff? That's like saying a burglar doesn't think you're going to take fingerprint samples after he burglarizes a home.
CONAN: Yeah, it doesn't mean burglars always wear gloves, does it? Jonathan Winer?
AMY: Well, no. I mean, they could be stupid. But why would we assume that terrorists don't know that you're tapping phones and that you're watching the money transactions.
Mr. WINER: They do, but it turns out that it's very inconvenient to try and communicate to people without using telephones or other forms of telecommunication. And it's really hard to move lots of money around the world without using the formal international payment system.
AMY: Exactly. So they would know that the U.S. government is watching this. I really don't think that this is exposing any particular secrets.
CONAN: Well, presumably, if they're using these systems, the telephones and the banking system, they have some cleverness that they think is going to foil investigations.
Mr. WINER: Well, there're trade-offs for every kind of technology that you use. What the federal government has been saying for the last couple of years, is that terrorists have been moving towards increased use of bulk currency smuggling - in the United States, as well as elsewhere - and that's a big problem. There have been some other...
AMY: They already know that they government is watching these transactions and that they're tracking them and using this as anti-terrorism...
Mr. WINER: Because the private sector, the banks, and all the other kinds of financial institutions have gotten much tougher, in terms of the anti-money- laundering and terrorist finance procedures they put into place since September 11th.
Mr. SCHOENFELD: And just as the NSA wire-tapping story made it clear to them that the government was almost certainly listening in on their cross-border communications, what was before the story a probability or a possibility, became fop them a certainty. So, they had to either encode their conversations in a way that couldn't be broken, or shift to an alternative means of communication.
CONAN: Amy thanks very much for the call. We're going to take a couple of more questions on this issue when we come back from a short break. And again, if you'd like to join us, 800-989-8255. Plus, challenging a law about to take effect that requires Medicaid recipients to provide proof of U.S. citizenship. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.
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CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. And here are the headlines from some of the other stories we're following here today at NPR News. A Palestinian militant group says an abducted Israeli soldier is alive. Meanwhile, Israeli troops are deployed along the Gaza border and officials say they will move in soon, unless the soldier is released.
And a draft law being reviewed by China's legislature would impose fines on the Chinese media if they report on, quote, "sudden events without official government approval." Sudden events could include things such as mining disasters, health scares and riots.
You can hear details on those stories and, of course, much more later today on ALL THING CONSIDERED from NPR News. And tomorrow on TALK OF THE NATION, forget your Funk and Wagnall's, when we need to look up a word these days, most of us go online. We'll talk about words and the web. Plus, pirates with post-its: the silly adventures of the Pirate Captain. That's tomorrow on TALK OF THE NATION.
In a few minutes, immigration and Medicaid. A law about to take effect requires recipients to show proof of U.S. citizenship. Right now we're talking about the disclosure by the New York Times and other newspapers of a U.S. program to monitor private financial information. And is the public's right to know in this case greater than the government's need for secrecy.
Our guests are Jonathan Winer, a former U.S. deputy assistant secretary of state for international law enforcement. And Gabriel Schoenfeld, a senior editor at Commentary Magazine.
And let's get another caller on the line. And this is Malcolm. Malcolm calling us from Heidelberg in Germany.
MALCOLM (CALLER): Hello.
MALCOLM: Yeah. I've been listening to this and, of course, reading the papers in the last couple of days. Isn't it the job of journalism to take on the government when the government doesn't follow the rules? And in both of these two big recent cases, the government could have used other procedures to do it. Isn't that part of this whole thing?
MALCOLM: I'll take my answer offline.
CONAN: Alright Malcolm. Thanks for the call. And Gabriel Schoenfeld, I guess that's to you.
Mr. SCHOENFELD: Well, in both cases the government was following the rules. Some debate that. But in the NSA case, they were briefing members of Congress. The banking case the same. And this is a - we're in a war, and we have to use secret methods. We are a democracy, so those secret methods sometimes sit uncomfortably with our democracy.
However, Congress was informed. This is not a case of the executive branch running away with some nefarious covert program for its own interests. They're working hard to keep us from having a repetition of September 11th or a subway bombing of the kind that we've seen in Spain or London.
And for the programs to be just disclosed by the press, I think it sets us up for a very perilous moment where we cannot effectively wage the war against these al-Qaida terrorists who are out to murder us in large numbers.
CONAN: As you know though, there were many members in Congress on both sides of the aisle, certainly on the NSA story, who said they were outraged that indeed they had not been briefed. And there was a big debate about whether the proper groups in Congress were briefed by the administration on this program. And, in fact, they don't want to shut the program down, but they would like to make it legal.
Mr. SCHOENFELD: Yes, but I think that's been exaggerated to some degree. Consider this. General Hayden, who was at the NSA running this program, was then nominated to be director of the CIA. He was confirmed by a vote of 75 to 10. An overwhelming support for what some people regard as the architect of a so-called criminal program. I think there's been a lot of noise made about this program and discontent that it's evoked, but I don't think there's a lot of - I think the program's a popular one - support among the American people and support in Congress itself.
CONAN: Well, obviously you can't measure support amongst the American people until it becomes public, so that's a little dicey there.
Mr. SCHOENFELD: Well, after it was disclosed I'm saying.
CONAN: Yeah, yeah, yeah, yeah. Let's get one last call. This is Juan. Juan calling from Charlotte, North Carolina.
JUAN (CALLER): Thank you for taking my call. My comment is the following: if this program is effective, how many convictions has it led to. And I would like to make a comment. Most of these programs, in my opinion, are questionable and, in my opinion, they don't seem to pass the smell test. Why doesn't the president go before Congress and seek proper permission? And I will take my answer off the air.
CONAN: Alright Juan, thanks for the call. And I guess, at least part of that Jon Winer goes to you.
Mr. WINER: Yeah, the International Emergency Economic Powers Act is a statute. It's a law. It's not a constitutional authority, inherent in the constitution. It's a law that Congress passed in the 1970s, which says that in cases of national security emergencies involving threats to our economy, in part, from overseas, the president can seize assets, he can investigate transactions. And it gives the president that right. The president can, in turn, delegate that authority to the Treasury and to an office of the Treasury. So the Congress gave that right. I don't think there's any question about that.
Now you can question about particular uses of it. If they decided to go after my bank accounts because they were interested what my consumer purchases were, and they then leaked it to somebody, you would say, what is it? What the heck does that have to with the threats from overseas? That would strike me as an abuse.
Mr. WINER: But I haven't heard of any abuses so far. What I've heard is that they used it to trace terrorist transactions from beginning to end. And you don't necessarily need or want a law enforcement prosecution there. What you may want to be able to do is to track down networks of terrorist funds and stop a terrorist attack. That might be a more important outcome...
CONAN: So, the...
Mr. WINER: ...than prosecuting somebody.
CONAN: ...convictions is not necessarily the proper measurement there.
Mr. WINER: It is certainly not. This is a mechanism you can use to prevent. This is a mechanism you can use to identify and freeze. It's a tremendously important tool, and it's not just to be used against terrorists. It needs to be used against serious international bad guys, across the board.
If you've got a genocidal maniac who's running a foreign country, who's doing transactions around the world. If you've got a nuclear proliferators. You've got a major cocaine trafficker who's moving dope around this country. The same mechanism can be used against all of them to get at their networks, and it's tremendously important.
CONAN: Thanks very much for being with us today. We appreciate your time. Jonathan Winer is a former U.S. deputy assistant secretary of State for international law enforcement in the Clinton administration.
Our thanks as well to Gabriel Schoenfeld, who was with us from our bureau in New York. Appreciate it.
Mr. SCHOENFELD: Thanks for having us.
CONAN: Gabriel Schoenfeld is a senior editor at Commentary Magazine. His article in the March issue of Commentary was titled, Has the New York Times Violated the Espionage Act?
And coming back we'll be talking about Medicaid and U.S. citizenship.
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