O'Reilly, Coulter falsely claimed nobody has questioned legality of Bush administration's financial monitoring program

On the June 26 edition of Fox News' The O'Reilly Factor, Bill O'Reilly railed against The New York Times' disclosure of a secret Bush administration program designed to monitor international financial transactions, falsely claiming that "by all accounts" the program is "entirely legal" and that "[n]obody is asserting that they [the Bush administration] overstepped their authority." Additionally, during the same day's broadcast of MSNBC's Scarborough Country, right-wing pundit Ann Coulter similarly asserted that "no one thinks" the program "violates any laws." In fact, some legal experts and politicians have indeed questioned the legality of the newly disclosed program.

During an interview with Rep. Edward Markey (D-MA), O'Reilly also falsely claimed that "nobody is asserting" that administration officials "did not" obtain subpoenas for the international bank records from a federal judge, an assertion that Markey challenged. In fact, it appears to be only O'Reilly who is asserting that the Bush administration did obtain subpoenas from a judge. News reports and administration officials have confirmed that the program relies on "administrative subpoenas," which are issued by executive branch agencies without a court's authorization.

On June 23, The New York Times, the Los Angeles Times, and The Wall Street Journal (subscription required) all published articles disclosing a secret Bush administration program designed to monitor international financial transactions. The classified program, according to the reports, began as a response to the September 11, 2001 terror attacks for the purpose of aiding law enforcement with tracking down terrorist operatives by monitoring their financial activity. It is reportedly run by the Central Intelligence Agency (CIA) and overseen by the Treasury Department. As the Los Angeles Times reported:

Treasury routinely acquires information about bank transfers from the world's largest financial communication network, which is run by a consortium of financial institutions called the Society for Worldwide Interbank Financial Telecommunication, or SWIFT.

The SWIFT network carries up to 12.7 million messages a day containing instructions on many of the international transfers of money between banks. The messages typically include the names and account numbers of bank customers -- from U.S. citizens to major corporations -- who are sending or receiving funds.

Through the program, Treasury has built an enormous -- and ever-growing -- repository of financial records drawn from what is essentially the central nervous system of international banking.

Yet, contrary to O'Reilly's claim, Treasury officials did not seek court approved subpoenas to gain access to SWIFT's data. Instead, the officials reportedly used administrative subpoenas which, as the L.A. Times noted, "are secret and not reviewed by judges or grand juries, as are most criminal subpoenas." From the L.A. Times:

In a major departure from traditional methods of obtaining financial records, the Treasury Department uses a little-known power -- administrative subpoenas -- to collect data from the SWIFT network, which has operations in the U.S., including a main computer hub in Manassas, Va. The subpoenas are secret and not reviewed by judges or grand juries, as are most criminal subpoenas.

In a press conference in the wake of initial reports on the program, Treasury Undersecretary for Terrorism and Financial Intelligence Stuart Levey stated: "The legal basis for the subpoena we issue is routine and absolutely clear. The International Emergency Economic Powers Act ... allows us to issue administrative subpoenas for financial records." The International Emergency Economic Powers Act was passed in 1977 and reauthorized in 2001.

Additionally, contrary to assertions by O'Reilly and Coulter that no one is denying the legality of the program, several experts have raised questions about whether the program follows proper legal procedures. O'Reilly specifically claimed that "[T]he New York Times isn't asserting that" Bush administration officials "overstepped their authority" or that the program was illegal. In fact, the New York Times article in question did note that some have questioned the legality of the program. For instance, The New York Times 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 New York Times also reported that SWIFT executives 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 New York Times:

But at 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.

A June 24 New York Times report also noted Sen. Arlen Specter's (R-PA) concerns over the legality of the program:

Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, said he had sent letters on Friday to both Treasury Secretary John W. Snow and Attorney General Alberto R. Gonzales on the issue. While he declined to release the letters, he said he was concerned about the legal authority for the operation.

Mr. Specter has been at odds with the administration over another previously secret counterterrorism operation, the National Security Agency's domestic eavesdropping program. The senator said he was particularly 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.

''Why does it take a newspaper investigation to get them to comply with the law?'' the senator asked. ''That's a big, important point.''

Moreover, numerous organizations and individuals -- including some from the Treasury Department -- have raised objections concerning a lack of oversight of the program. As the Los Angeles Times reported: "Critics complain that these efforts are not subject to independent governmental reviews designed to prevent abuse, and charge that they collide with privacy and consumer protection laws in the United States." Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, told the L.A. Times: "It boils down to a question of oversight, both internal and external. And in the current circumstances, it is hard to have confidence in the efficacy of their oversight. Their policy is, 'Trust us,' and that may not be good enough anymore." Additionally, the L.A. Times reported that at least one former Treasury department official familiar with the program, "expressed concern" over the program:

A former senior Treasury official expressed concern that the SWIFT program allows access to vast quantities of sensitive data that could be abused without safeguards. The official, who said he did not have independent knowledge of the program, questioned what becomes of the data, some of it presumably related to innocent banking customers.

"How do you separate the wheat from the chaff?" the former official said. "And what do you do with the chaff?"

From the June 26 edition of Fox News Channel's The O'Reilly Factor:

O'REILLY: Bush is the big threat. Terrorists in rogue nations line up after him. Now, that kind of extreme thinking --based on little evidence, by the way -- is putting all Americans in danger. There's not one valid reason to expose a covert operation -- by all accounts entirely legal -- designed to track money going to terrorists. The New York Times may have reached the tipping point. The paper is chock full of far-left columnists, and now its news pages could be damaging national security. So what should be done?

[...]

MARKEY: Well, actually, that was the same argument that the Bush administration made about wiretapping Americans, that they didn't have to go to a judge in order to get a court order to be able to do it. Well, they're using the same argument here. That's the big news. The big news is that the Bush administration is going to trust Booz Allen, an auditing firm, to determine whether or not Americans' constitutional rights are being protected, and not the federal courts. And this Fourth Amendment question keeps surfacing, whether it be looking at emails, looking at telephone records, or here, looking at financial records.

O'REILLY: But nobody here asserts any kind of illegality because there were subpoenas issued, and everybody knows that. And in the NSA situation, I understand you guys in Congress are going to pass a law allowing the president to continue the program. Is that not the truth?

MARKEY: Well, look at -- there were no subpoenas that were issued pursuant to a federal court order. The Bush administration put out their own subpoenas, never told the courts about it at all. That is a very serious Fourth Amendment violation.

O'REILLY: So let me get this straight, though --

MARKEY: And you can't --

O'REILLY: You think that the Bush administration violated federal law in monitoring wire transfers from the Belgian concern? Is that what you're saying?

MARKEY: There's no debate between Democrats and Republicans or any American on whether or not we want the president of the United States to be as aggressive as possible in putting Al Qaeda out of business. This debate is over whether or not the Bush administration has to go to a federal judge in order to get authorization to go through millions of financial transactions, and not have any --

O'REILLY: Whoa, whoa, but nobody is asserting they did not do that. They got the legal papers.

MARKEY: No, they did not.

O'REILLY: Listen, this is overseas. Remember, that's not a United States bank. It's a concern in Belgium.

MARKEY: But -- All right. But how would you feel, Bill? How would you feel if the French government went to this company, SWIFT, and said they have concerns about security in their country, they would like access to all of those financial records? You would be absolutely wild if the French were able to do that. There have to be rules. There have to be guidelines. There has to be a process.

O'REILLY: OK, but the Bush administration went through the international guidelines. Nobody is asserting that they overstepped their authority. The New York Times isn't asserting that. They printed it --it outed a covert program on a theoretical argument that maybe, could be, they might be doing something to water down our protections. Come on, Congressman. Look, you know as well as I do that if there was provable wrongdoing, that would have been the headline in The New York Times. And the article went out of its way to say, as you read it, I'm sure, there was no illegality here. So what are you putting forth tonight? That -- I don't get it.

MARKEY: The big news that The New York Times broke is that the Bush administration has not gone to a federal court under the Fourth Amendment in order to gain a court order to go after the --

O'REILLY: They don't have to.

MARKEY: They do have to.

O'REILLY: No, then they would have broken the law.

MARKEY: It's also a violation of the Financial Privacy Act of 1978.

O'REILLY: It's in Belgium.

MARKEY: What they're saying is that when the money goes from one bank to another bank, as it goes through SWIFT, that none of these laws or protections apply. It's like saying that when the money is taken from one bank to another bank, when it's inside the Brinks truck --

From the June 26 edition of MSNBC's Scarborough Country:

COULTER: [R]evealing a classified program, which no one thinks violates any laws, no abuse of power, it's a third-party administrator of these transactions, that has led to from suspected terrorists going and, you know, money laundering, that has led to the capture of various terrorists, and to various terrorist money-laundering operations. If that is not treason, then we're not prosecuting anymore.