US Cites ‘Secrets’ Privilege as It Tries to Stop Suit on Banking Records
WASHINGTON, Aug. 30 - The Bush administration is signaling that it plans to turn again to a legal tool, the “state secrets” privilege, to try to stop a suit against a Belgian banking cooperative that secretly supplied millions of private financial records to the United States government, court documents show.
The suit against the consortium, known as Swift, threatens to disrupt the operations of a vital national security program and to disclose “highly classified information” if it continues, the Justice Department has said in court filings.
A hearing on the suit is scheduled for Friday in federal court in Alexandria, Va.
The “state secrets” privilege, allowing the government to shut down litigation on national security grounds, was once rarely used. The Bush administration has turned to it more than 30 times in terrorism-related cases, seeking to end public discussion of cases like the claims of an F.B.I. whistle-blower and the abduction of a German terrorism suspect.
Most notably, the administration has sought to use the privilege to kill numerous suits against telecommunications carriers over the National Security Agency’s eavesdropping program.
But a judge in California rejected the argument because the program had been discussed so widely. The government challenge is pending before the United States Court of Appeals for the Ninth Circuit, where judges at a hearing two weeks ago expressed skepticism on the secrecy argument.
Asserting the privilege requires the director of national intelligence and the attorney general to certify legally the potential harm to national security.
If the administration makes good on its intention to invoke the privilege in the Swift suit, it would be one of the most significant tests of the privilege.
Swift is considered the nerve center of the global banking industry, routing trillions of dollars each day among banks, brokerage houses and other financial institutions. Its partnership with Washington, reported in The New York Times in June 2006, gave Central Intelligence Agency and Treasury Department officials access to millions of records on international banking transactions.
The access was part of an effort to trace money that investigators believed might be linked to financing of terrorism.
Months after the Sept. 11, 2001, attacks, Swift began turning over large chunks of its database in response to a series of unusually broad subpoenas from the Treasury Department.
Administration officials have defended the program as an important tool in the war on terror. European banking regulators and privacy advocates were quick to denounce the program as improper and possibly illegal.
The pressure resulted in an agreement this year by Swift and United States officials to tighten restrictions for using the data.
Two American banking customers also sued Swift on invasion-of-privacy grounds. Legal and financial analysts had expected that the suit would have been thrown out because American banking privacy laws are considered much laxer than those in much of Europe.
But the chief judge in Federal District Court in Chicago, James F. Holderman, ruled in June that he would allow the suit to proceed, partly on grounds of claims of a Fourth Amendment violation and his finding that Swift’s arguments on that point were “unpersuasive.”
“The decision in Chicago was a pretty big win for our side,” Steven E. Schwarz, a lawyer in Chicago who represents the plaintiffs, said in an interview.
The Swift program, Mr. Schwarz said, “is an Orwellian example of government overreaching and unfettered access to private financial information that is not consistent with the values upon which our country was founded.”
Judge Holderman did agree to move the suit to the federal court in Alexandria at the request of Swift lawyers. Its main American arm operates from Manassas, Va.
The hearing on Friday is on a motion by Swift for Judge T. S. Ellis to reconsider Judge Holderman’s ruling.
In a motion filed on July 25, the Justice Department urged the court to throw out the suit to “preserve” the program against financing terrorism, “protect Swift from the burden of further litigation here and minimize the likelihood that highly classified information will be threatened.”
The department said this week that it would send a lawyer to the hearing, but it was unclear whether the “state secrets” privilege would be raised.
Lawyers for the Justice Department and Swift would not discuss the case in substance beyond the court filings.
The administration has turned to the privilege much more frequently than past administrations. According to a report due out this weekend by an advocacy group, OpenTheGovernment.org, the administration has used it 39 times in the last six years, compared with 59 times in the 24 years before that.
Historically, courts have been reluctant to challenge the secrecy privilege. But the administration has suffered setbacks in seeking to use the secrecy claim in the eavesdropping case and several other recent cases.
“We’ve seen a real erosion of the ‘state secrets’ privilege in the last year,” said Mr. Schwarz, the lawyer suing Swift. “I think it is from overuse. We’ve seen it used in record numbers, in situations where it was inappropriate, and the courts are starting to recognize that.”
Tom Blanton, director of the National Security Archive at George Washington University, said: “What seems clear is that until a year or two ago, the judges rarely even questioned it when the government raised the ‘state secrets’ claim. It was a neutron bomb - no plaintiffs left standing.
“But we’re now seeing that judges are starting to actually look behind the government’s secrecy claims and see what’s really there.”
Copyright 2007 The New York Times Company
All you would have to do is reroute the data mining program and you can see the way people move their money on wall street and you can then play yourself and make the big bucks. People set these systems up for their own brokering with minor expense. Now, plug in all the banking info our government is stealing and you can rape the system clean. I’m sure you can do a lot of sifting with one of these big government computers, in any direction you want. It has always been about the money. Heck Safeway, Walmart, Target, or any big store are all data mining their patrons and selling their records. There has to be a lot of money in it.
If the government has all this access to financial records then why haven’t they brought to light all the people who placed ‘put’ options on United & American airlines immediatly prior to 911. Someone made hundreds of millions on those trades. If “Follow the money” is correct, then uncovering that information is essential for discovering who really was behind the 911 travesty.
Why haven’t we heard anything else about the hundreds of insider trading cases whose records were lost when WTC #7 ‘mysteriously’ collapsed to the ground? Weren’t there other records kept somewhere else on these acts of suspicious criminal activity?
With such unfettered access to financial records this administration has garnered (either legally or not) it would seem they could know answers to these questions, or should know. Then again perhaps they already do know, and just don’t want the American people to know.
Instead of dismissing the suit, the court should draw an adverse inference, as it does when a witness who ought to be called by a party isn’t. The government can rebut the inference by claiming the suppressed information was a state secret.
If I claim that the government is spying on me and it refuses to answer my charge by claiming the answer is a state secret, the court should credit my claim. Such a rule is logical and fair, inasmuch as the government’s suppression of the evidence would be self-serving if no adverse inference were drawn. Such a rule would keep the court from becoming a party to the suppression of evidence for the corrupt purpose of defeating my meritorious claim.
It looks like wisdom dictates those of us representing American businesses overseas need to explore returning to the old system, prior to SWIFT, of banker’s checks sent registered mail to the US. That will help slow down everything . . .
It’s appalling that we are seeing no measures, indeed barely any discussion, of protection against insider trading.
Who is looking at all the SWIFT data? Pals of Dick ad George?
I am not a lawyer, but my understanding is that the court process is adversarial one. If a plaintiff lays a claim, and the defendant declines to contest it, it would seem that the court has no choice but to award for the plaintiff.
Could I, as a defendant, tell a court that I cannot defend against a suit because it would reveal a secret that would embarrass/injure me? And what would the court decide in that case?
Depends on how much money you have. LOL
The put options on 911 are intriguing as PaulMagillSmith writes on August 31. The book Debunking 9/11 debunking by David Ray Griffin cites this and many other items that were not followed up even by the highly acclaimed 9/11 Commission report which was actually overseen by a cousin of Michael Chertoff,our security czar! No conflict, of course.
The SWIFT data could show interesting activities of the Carlyle Group, club of former preseidents and friends, such as Bush 1, Baker, Carlucci, Rumsfeld, Ramos of the Phillipines, Major of UK,etc. It also has has had relations to the BinLadin Group of investing- how’s that!
People, People…
If you think you’re mad now, there’s something you should know:
Most of us don’t understand our military could have EASILY tracked down Bin Laden by now. We have instruments that go way beyond reading your watch from space….40 years ago there were covert operations dealing with “non-local” mind interface, and telepathic interplay. 40 year ago! Think about what has evolved to this day! And they can’t find Bin Laden? Please!
Go buy Steven Greer’s book: “Hidden Truth, Forbidden Knowledge”. It will blow you away! I mean it, there is not a book out there more valuable than this if you want to get the truth on UFO cover-up’s and the ultra top-secret group of “men in black”, who work independently from any government or rule of law, who we have more than enough witnesses and proof to say this rogue group is behind the most unbelievable set of programs and misinformation campaigns in history…including advanced energy and propulsion systems. Dr. Greer generated a huge wave of international interest in 2001 when he brough a large group of witnesses forward to speak at a National Press Club meeting on ET’s and super advanced technology that could end all fossil fuel usage and global poverty, if disclosed to the public. His presentation was the most watched live internet event ever recorded in history.
sharing equal justice. why the condescending tripe? Of course my minions are watching every blink of your beady eyes through your computer, but if something is the “most watched live internet event ever recorded in history” then how could it not be disclosed to the public? That’s like saying that if only all the stupid people in the world knew the ultra top secret hidden truth that today is Saturday, our minds would be really really blown, man.
Dirty George is at it again….
Well, what else is gnu? This bastards’ lies and half truths have already run their gamet sinking the nation into a mess that will take decades to rectify, so now the only thing that is left to do is to continue to ’snarl’ everytime a goverment agency seeks to investigate George’s crime syndicate for a myraid of high crimes and misdemeanors.
I say: “If yo can’t shoot the bastard and you won’t impeach him, then you gotta commit him Pelosi.
TheAZCowBoy
Tombstone, AZ.
DBA: IDidntVote4ThebassTerd@msn.com
I’m not sure I follow your point, stepfour @ 2:44 pm, but I wonder if you have some insight on the relevance of SWIFT being a foreign entity? If the Bushies used a what is presumably a publicly-owned foreign company to spy, how can it possibly argue national security would be compromised by court proceedings? International security, maybe, but NATIONAL security, no way.
The Bush family should know all about trading with the enemy, during WW-2 the family’s assets were seized because they were invested in Nazi companies. The assets were not returned until 1954.
I don’t think you need bank records to see who is funding what in this case, because it is all underhanded B.S.