Following the Money, and the Rules

NYT Editorial

After the attacks on 9/11, when the terrorist threat seemed equally dangerous and amorphous, one of the few clear strategies for counterattack was to follow the money. Almost everyone, including this page, urged the Bush administration to be aggressive in shutting down the flow of cash to terrorist organizations, and to root out the people who were supplying it.

The administration went to work, and one very useful source of information turned out to be a banking cooperative known as Swift — Society for Worldwide Interbank Financial Telecommunication. It routes about $6 trillion a day among 7,800 financial institutions worldwide. An article by Eric Lichtblau and James Risen in yesterday's Times — and similar stories in The Wall Street Journal and The Los Angeles Times — detailed how investigators have made use of Swift data to track potential terrorist financing. Government officials say the information has helped capture one important Al Qaeda operative abroad, and that it has assisted domestic investigations as well.

That sounds like good news. What's worrisome is a familiar refrain. Despite a compliant Congress, which was eager to give the administration all the investigative tools it requested, the White House has chosen to operate outside any real scrutiny, and not to seek explicit authorization for what has clearly become a permanent program.

In the heightened state of emergency after 9/11, the government began examining the Swift records with the help of general administrative subpoenas, which are basically permission from one part of the executive branch to another. Now it is nearly five years later, and nothing has changed. Investigators have examined the international money transfers of thousands of Americans, apparently without ever trying to get a court order or warrant to do the searches. And Congress, as usual, has never exercised any oversight.

A few members were briefed on the program, and a few more told about it once it became clear that newspapers were preparing an article. But the briefings tend to become a trap in which those who are informed about what is going on are required under security rules not to talk about what they know even after it becomes public. Armed with some knowledge, they become more impotent than when they were completely in the dark.

One danger of a never-ending government investigation into people's financial transactions is mission creep. A Treasury Department spokesman told The Times that the information mined from Swift — which includes millions of records — cannot be used for anything except terrorism searches. But there is little to guarantee that will continue to be the case.

Congress, which has given the administration many new powers to conduct terrorism investigations, needs to judge whether this was what it had in mind. The original Patriot Act made major changes in money-laundering laws that provided for the use of administrative subpoenas. But the Judiciary chairman, Arlen Specter, was quoted yesterday as questioning whether their use in the Swift investigation has been too broad. The committee has already scheduled an oversight hearing this month, at which Attorney General Alberto Gonzales is slated to appear. The senators should take the opportunity to look deeper.

So far, the only check on the executive branch appears to have come from the Swift executives themselves, who grew increasingly concerned when what they envisioned to be a short-term program seemed on its way to becoming permanent. It was at their insistence that the controls the government now cites were put into place. An outside auditing firm is now used to verify that investigators have real intelligence leads behind their requests for information. That is all to the good; it is clear that when it comes to defending their customers, international banking executives are far more aggressive than, say, American telephone company executives.

When government agencies are involved in continuing investigations that might infringe on Americans' privacy, it is important that some outside entity is keeping track of what is going on. That principle is particularly true now, when the United States is trying to learn how to live in a perpetual war on terror.

Investigators will probably need to monitor the flow of money to and from suspected terrorists and listen in on their phone conversations for decades to come. No one wants that to stop, but if America is going to continue to be America, these efforts need to be done under a clear and coherent set of rules, with the oversight of Congress and the courts.