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Secret Program Tracks International Financial Transactions

From the New York Times:

WASHINGTON, June 22 — Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.

The program is limited, government officials say, to tracing transactions of people suspected of having ties to Al Qaeda by reviewing records from the nerve center of the global banking industry, a Belgian cooperative that routes about $6 trillion daily between banks, brokerages, stock exchanges and other institutions. The records mostly involve wire transfers and other methods of moving money overseas and into and out of the United States. Most routine financial transactions confined to this country are not in the database.

Viewed by the Bush administration as a vital tool, the program has played a hidden role in domestic and foreign terrorism investigations since 2001 and helped in the capture of the most wanted Qaeda figure in Southeast Asia, the officials said.

The program, run out of the Central Intelligence Agency and overseen by the Treasury Department, “has provided us with a unique and powerful window into the operations of terrorist networks and is, without doubt, a legal and proper use of our authorities,” Stuart Levey, an under secretary at the Treasury Department, said in an interview on Thursday.

The program is grounded in part on the president’s emergency economic powers, Mr. Levey said, and multiple safeguards have been imposed to protect against any unwarranted searches of Americans’ records.

The program, however, is a significant departure from typical practice in how the government acquires Americans’ financial records. Treasury officials did not seek individual court-approved warrants or subpoenas to examine specific transactions, instead relying on broad administrative subpoenas for millions of records from the cooperative, known as Swift.

That access to large amounts of confidential data was highly unusual, several officials said, and stirred concerns inside the administration about legal and privacy issues.

My initial reaction to this is that it sounds legal to me (and also a pretty good idea). Despite the Times’ suggestion, I don’t think I have heard of a warrant being obtained for finanical transations; the Fourth Amendment clearly doesn’t require that, and I don’t know of a statute that does. Further, I don’t know why it makes a legal difference that the government used an administrative subpoena for lots of data rather than issuing a subpoena for individual accounts. It makes the program more broad, but I wouldn’t think that the subpoenas were legally overbroad or improper. (I assume these files were transfered in electronic form, and it’s usually not overly burdensome to transfer lots of electronic files.) And in any event, there is no sign that the recipient of the subpoenas objected, and the recipient would be the group with legal standing to object.

Adam White offers more commentary at Intel Dump; Julian Ku has thoughts at Opinio Juris.