According to Treasury and Justice Department officials familiar with the briefings their senior leadership undertook with editors and reporters from the New York Times and Los Angeles Times, the media outlets were told that their reports on the SWIFT financial tracking system presented risks for three ongoing terrorism financing investigations. Despite this information, both papers chose to move forward with their stories.
"We didn't give them specifics, just general information about regions where the investigations were ongoing, terrorist organizations that we believed were being assisted. These were off the record meetings set up to dissuade them from reporting on SWIFT, and we thought the pressing nature of the investigations might sway them, but they didn't," says a Treasury official.
In fact, according to a Justice Department official, one of the reporters involved with the story was caught attempting to gain more details about one of the investigations through different sources. "We believe it was to include it in their story," says the official.
In the briefings, Treasury and Justice Department officials laid out the challenges law enforcement and intelligence agencies have had with the traditional and still popular hawala Muslim "banking" system, which is dependent more on interpersonal dealings than on institutions and has been prevalent in parts of the world that doesn't understand the Islamic rules. "Since 9/11 we've gotten a lot better at monitoring hawalas," says a Justice Department official. "That success has forced a lot of the money into the institutional or more traditional banking systems. And that's where SWIFT has been particularly helpful."
This is especially true in the regions of the world that cater to large Muslim communities that require banking rules in line with their faith. Increasingly in countries like Malaysia, large, international banks are attracting billions in Muslim funds, trades and transfers of which could be monitored by SWIFT.
According to the Treasury and Justice Department sources, the reporters and editors appeared to have been told that the SWIFT financial monitoring was somehow being undertaken without warrants and without legal supervision. But from the initial briefings, the Times papers were shown information that clearly outlined the search warrant procedures undertaken by the federal government to track some financial transactions.
In fact the SWIFT program released a statement once the Times' stories ran stating that it had negotiated terms of the limited monitoring:
SWIFT negotiated with the U.S. Treasury over the scope and oversight of the subpoenas. Through this process, SWIFT received significant protections and assurances as to the purpose, confidentiality, oversight and control of the limited sets of data produced under the subpoenas. Independent audit controls provide additional assurance that these protections are fully complied with.
"We thought that once the reporters and editors understood that one, these were not warrantless searches, and two, that this was a successful program that had netted real bad guys, and three, that it was a program that was helping us with current, ongoing cases, they would agree to hold off or just not do a story," says the U.S. Treasury official. "But it became clear that nothing we said was going sway them. Whomever they were talking to, whoever was leaking the stuff, had them sold on this story."
To that end, the Justice Department has quietly and unofficially begun looking into possible sources for the leak. "We don't think it's someone currently employed by the government or involved in law enforcement or the intelligence community," says another Justice source. "That stuff about 'current and former' sources just doesn't wash. No one currently working on terrorism investigations that use SWIFT data would want to leak this or see it leaked by others. We think we're looking at fairly high-ranking, former officials who want to make life difficult for us and what we do for whatever reasons."
As for the ongoing investigations that the two Times papers were told of, only time will tell if they have been damaged by the reporting. "Let's put it this way, some of these folks probably aren't using their banks anymore, so who knows," says the Treasury source. "Using banks for transfers was easier for them to move funds faster, especially if it was in a part of the world that was heavily Muslim and they thought the money wouldn't draw as much attention there. But groups like al Qaeda aren't about to put expediency before their goals of destroying us, so they will do what they have to do to protect their financing and their operatives. We know that, we just wish the New York Times and Los Angeles Times cared, too."
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