Chris Matthews failed to challenge Rep. Peter King's false claim that The New York Times is "acknowledging" that a secret Bush administration program designed to monitor international financial transactions "is legal." However, New York Times executive editor Bill Keller has stated that "[i]t's not [the Times'] job to pass judgment on whether this program is legal." The Times has also reported that banking experts, as well as banking executives and Bush administration officials familiar with the program, have concerns about its legality.
On the June 27 edition of MSNBC's Hardball, host Chris Matthews left unchallenged Rep. Peter King's (R-NY) false claim that The New York Times is "acknowledging" that a secret Bush administration program designed to monitor international financial transactions "is legal." Specifically, Matthews failed to challenge King's false assertion that the initial June 23 Times story reporting on the program "never suggested this was illegal." In fact, New York Times executive editor Bill Keller has stated that "[i]t's not [the Times'] job to pass judgment on whether this program is legal." In addition, the June 23 Times story noted that banking experts, as well as banking executives and Bush administration officials familiar with the program, have concerns about its legality. A June 24 Times story also included a statement by Sen. Arlen Specter (R-PA) questioning the "legal authority" for the program.
King's falsehood echoed a similar statement by Fox News host Bill O'Reilly. As Media Matters for America noted, O'Reilly alleged that the Times report "went out of its way to say ... there was no illegality here."
When asked by Matthews whether the program is "illegal," King claimed that "[e]ven The New York Times, in this story last Friday [June 23], has never suggested this was illegal anyway." He later added: "I don't believe The New York Times very often, but in this case, they are the ones who are the critics of the Bush administration, and even they are acknowledging that it's legal."
Yet in a June 25 letter sent to readers who responded to the June 23 Times story, Keller stated that "[i]t's not our [the Times'] job to pass judgment on whether this program is legal or effective, but the [June 23] story cites strong arguments from proponents that this is the case." He also stated that "some experts familiar with the program have doubts about its legality, which has never been tested in the courts, and ... some bank officials worry that a temporary program has taken on an air of permanence," adding that the Times has not "identified any serious abuses of privacy so far." Further, in a June 28 weblog post describing an interview with Keller, Washington Post media critic Howard Kurtz wrote:
He [Keller] acknowledged, as did the Times article, that there was no clear evidence that the banking program was illegal. But, he said, "there were officials who talked to us who were uncomfortable with the legality of this program, and others who were uncomfortable with the sense that what started as a temporary program had acquired a kind of permanence.["]
Additionally, as Media Matters noted, the June 23 Times article reported that L. Richard Fischer, "a Washington lawyer who wrote a book on banking privacy and is regarded as a leading expert in the field," expressed concerns about the program:
Such a program, he [Fischer] said, appears to do an end run around bank-privacy laws that generally require the government to show that the records of a particular person or group are relevant to an investigation.
''There has to be some due process,'' Mr. Fischer said. ''At an absolute minimum, it strikes me as inappropriate.''
The Times also reported that executives of the SWIFT banking consortium -- which provided customer records under the Treasury Department program -- were "[w]orried about potential legal liability" and threatened to shut down the program, relenting "only after top officials, including Alan Greenspan, then chairman of the Federal Reserve, intervened." Moreover, the administration itself debated over legal issues surrounding the program, according to the Times:
[A]t the outset of the operation, Treasury and Justice Department lawyers debated whether the program had to comply with such laws before concluding that it did not, people with knowledge of the debate said. Several outside banking experts, however, say that financial privacy laws are murky and sometimes contradictory and that the program raises difficult legal and public policy questions.
Because Swift is based overseas and has offices in the United States, it is governed by European and American laws. Several international regulations and policies impose privacy restrictions on companies that are generally regarded as more stringent than those in this country. United States law establishes some protections for the privacy of Americans' financial data, but they are not ironclad. A 1978 measure, the Right to Financial Privacy Act, has a limited scope and a number of exceptions, and its role in national security cases remains largely untested.
Several people familiar with the Swift program said they believed that they were exploiting a ''gray area'' in the law and that a case could be made for restricting the government's access to the records on Fourth Amendment and statutory grounds. They also worried about the impact on Swift if the program were disclosed.
The June 24 Times report also noted that Specter "said he was concerned about the legal authority" for the program, and said he was "troubled that the administration had expanded its Congressional briefings on the financial tracking program in recent weeks after having learned that The New York Times was making inquiries." The Times story also quoted Specter asking: ''Why does it take a newspaper investigation to get them [the Bush administration] to comply with the law?''
From the June 27 edition of MSNBC's Hardball with Chris Matthews:
MATTHEWS: Congressman King, answer that question. Is this an illegal program or not? The surveillance of our banking records around the world?
KING: No, it's not. In 1976, the Supreme Court ruled in the Miller case that bank records are not protected by the Fourth Amendment because they're held by a third party. Subsequent legislation that went into effect did authorize the use of administrative subpoenas, which was what was done here. This is entirely legal.
The use of Booz Allen was to put in an extra layer of protection which was not required by the law, so here you're actually penalizing the government for doing something it wasn't even required to do. Even The New York Times, in this story last Friday, has never suggested this was illegal anyway. This is entirely legal.
MATTHEWS: So you go by The New York Times on this?
KING: Listen, if anyone was going to be a critic of The New York Times -- I don't believe The New York Times very often, but in this case, they are the ones who are the critics of the Bush administration, and even they are acknowledging that it's legal.