TheTerrorist Finance Tracking Program (TFTP) is aUnited States government program to access financial transactions on the internationalSWIFT network that was revealed byThe New York Times,The Wall Street Journal and theLos Angeles Times in June 2006. It was part of theBush administration'sWar on Terrorism. After the covert action was disclosed, the so-called SWIFT Agreement was negotiated between the United States and the European Union.
A series of articles published on June 23, 2006, byThe New York Times,The Wall Street Journal and theLos Angeles Times revealed that the United States government, specifically theUS Treasury and theCIA, had developed methods to access the SWIFT transaction database after theSeptember 11th attacks.[1][2][3]
According to the June 2006 article inThe New York Times, the program helped lead to the capture of anal-Qaeda operative known asHambali in 2003, believed to be the mastermind of the2002 Bali bombing, as well as helped identify aBrooklyn man convicted in 2005 forlaundering money for an al-Qaeda operative inPakistan.[4] The Treasury Department andWhite House responded to the leak the day before it was published, claiming that the leak damagedcounterterrorism activities. They also referred to the program as the "Terrorist Finance Tracking Program" ("TFTP"), similar to theTerrorist Surveillance Program in theNSA wiretapping controversy.[5]
The Terrorist Finance Tracking Program was viewed by theBush administration as another tool in the "Global War on Terrorism". The administration contends the program allows additional scrutiny that could prove instrumental in tracking transactions between terrorist cells. Some have raised concerns that the program might also be a violation of United States and European financialprivacy laws, because individual search warrants to access financial data were not obtained in advance.[6] In response to the claim that the program violates US law, some have noted that theU.S. Supreme Court inUnited States v. Miller (1976) has ruled that there is not an expected right to privacy for financial transaction records held by third parties and that "theFourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed".[7]
Immediately following the disclosure, SWIFT released a press statement asserting that they gave information to the United States in compliance with Treasury Department subpoenas, but claimed that "SWIFT received significant protections and assurances as to the purpose, confidentiality, oversight and control of the limited sets of data produced under the subpoenas".[8]
On 27 June 2006, it was revealed by the media that Belgium'scentral bank, theNational Bank of Belgium, had known about the US government's access to the SWIFT databases since 2002.[9] The BelgianChristian Democratic and Flemish party claimed on June 28 that the actions of the CIA with SWIFT were in breach of Belgian privacy laws. The Belgian parliamentary committee that deals with the workings of theBelgian State Security Service (Comité I) reported that SWIFT was indeed in violation of Belgian and European privacy laws.[10]
In addition, the New York branch of the DutchRabobank is said to have delivered information on its European customers to the US government, in contempt of European privacy laws. The Dutch Data Protection Authority claims that Dutch banks could face fines if they hand over data on their customers to the US government.[11]
Consequently, theEuropean Union (EU) obtained an agreement that they could send aninvestigating magistrate asHigh Representative of the EU to the United States in order to monitor the TFTP activities. This magistrate,Jean-Louis Bruguière, had a permanent office inWashington, D.C., at the Department of Treasury.[12]
Disclosures by formerNational Security Agency contractorEdward Snowden alleged the NSA was systematically undermining the SWIFT Agreement. No denial was issued by the American side, and the European Parliament passed a non-binding vote calling for the suspension of the agreement.[13][14] A suspension would however require the consent of a two-thirds majority of EU governments.[15]
After European concerns with wholesale SWIFT data export were raised, it became necessary for the United States to negotiate a treaty with the EU in order to be able to continue accessing the SWIFT database.[vague] TheAgreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program was negotiated during 2009.[citation needed] The treaty was first rejected by the European Parliament, however after a few months and a visit by US Vice PresidentJoe Biden to the parliament, the European Commission introduced a proposal with strengthened safeguards, which was then adopted.[16][17][18][19]
The scope of the treaty is to use financial payment messaging data to prevent, investigate, detect, and prosecute conduct pertaining to terrorism or terrorist financing. Terrorism is defined as "acts which involves violence or are otherwise dangerous to human life or create a risk of damage to property or infrastructure with the intent to intimidate a population or government or an international institution to act or abstain from acting or to seriously destabilize or destroy fundamental structures of a country or international organization."[citation needed]
The United States Treasury serves production orders to a designated provider of financial data. SWIFT is the only designated provider today. The request shall identify as clearly as possible the data necessary for the purpose of the treaty. The request should clearly substantiate the necessity of the data, and be tailored as narrowly as possible. Payments within theSingle Euro Payments Area are excluded.[citation needed]
The U.S. Treasury shall process the data only for the purpose of the treaty anddata mining is not allowed. The data must be secured and cannot be interconnected with any other database. Access to data shall be limited to investigations of terrorism. All searches must be based upon preexisting information or evidence of connection with terrorism. Information may only be shared with law enforcement, public security, or counterterrorism authorities in the United States or the EU.[citation needed]
Any person has the right to obtain a confirmation through the data protection authority in the EU member state that the person's data protection rights have been respected. Any person has the right to seek the rectification, erasure or blocking of his or her personal data where the data is inaccurate or the processing contravenes the treaty.[citation needed]
EU may request the aid of the United States to build up a European TFTP.[citation needed]
A number of Republicans in theU.S. House of Representatives criticizedThe New York Times for reporting on the program,[25] and RepresentativePeter T. King, then theHouse Homeland Security Committee chairman, called on the Bush administration to seek criminal charges against theTimes under theEspionage Act of 1917 and other relatedfederal statutes.[26] TheLos Angeles Times andThe Wall Street Journal divulged information about the TFTP at the same time.[27]The New York Times itself argued in a June 28, 2006editorial that its reporting about the TFTP is protected by theFirst Amendment and serves a vital role, providing "information the public needs to make things right again".The New York Times editorial further argued that terrorists would have to be "fairly credulous" to believe their finances were not being tracked and that the reporting bore "no resemblance to security breaches, like disclosure of troop locations, that would clearly compromise the immediate safety of specific individuals.[28]
Some have also questioned whether the information in the original June 23, 2006 newspaper articles was even secret, despite itsU.S. government classification, because of previous newspaper articles discussing SWIFT. Specifically, a 1998The Washington Post article, in the wake of theU.S. embassy bombings, mentioned that the "CIA and agents with Treasury'sFinancial Crimes Enforcement Network also will try to lay tripwires to find out whenbin Laden moves funds by plugging into the computerized systems of bank transaction monitoring services –operated by theFederal Reserve and private organizations called SWIFT andCHIPS – that record the billions of dollars coursing through the global banking system daily."[29] Also, a September 21, 2001The Baltimore Sun article mentioned SWIFT "headquartered in Belgium" and conjectured about the ability of theU.S. National Security Agency "to follow the money through its electronic intercepts of such transactions".[30] Still others have questioned the secrecy of the TFTP because the Bush administration has madepublic announcements that it planned to track terrorist-related finances. For example, in a speech shortly after the September 11th attacks, George W. Bush elaborated on the Administration's intention to track terrorist funding, saying "if [financial institutions] fail to help us by sharing information or freezing accounts, the Department of the Treasury now has the authority to freeze their bank's assets and transactions in the United States".[31]
However, critics of the decision to disclose the classified program's existence, includingU.S. Treasury SecretaryJohn W. Snow, responded by arguing that there is a vast difference between stating general intentions to track terrorist finances and actually revealing the exact means employed to do so. Some of these critics called attention toThe New York Times itself making no mention of either SWIFT or the Terrorist Finance Tracking Program in a November 29, 2005 article ironically detailing the Bush administration's apparentlack of progress in tracking terrorist finances.[32] Moreover, in an editorial on the press's obligations in wartime, the Wall Street Journal clarified the basic differences between its approach to the story and that ofThe New York Times.[33] As for Secretary Snow, he disagreed with executive editor ofThe New York TimesBill Keller's claim that terrorists are now exclusively using "other means"[34] to transfer funds, by stating that terrorists "have continued to [use] the formal financial system, which has made this program incredibly valuable".[35] Testifying before theHouse Financial Services Subcommittee on Oversight and Investigations on July 11, 2006,Stuart Levey, the Department of the Treasury's Under Secretary for Terrorism and Financial Intelligence, stated:
"Since being asked to oversee this program by then-Secretary Snow and then-Deputy Secretary Bodman almost two years ago, I have received the written output from this program as part of my daily intelligence briefing. For two years, I have been reviewing that output every morning. I cannot remember a day when that briefing did not include at least one terrorism lead from this program. Despite attempts at secrecy, terrorist facilitators have continued to use the international banking system to send money to one another, even after September 11th. This disclosure compromised one of our most valuable programs and will only make our efforts to trackterrorist financing—and to prevent terrorist attacks—harder. Tracking terrorist money trails is difficult enough without having our sources and methods reported on the front page of newspapers."[36]
On October 22, 2006, Public Editor ofThe New York TimesByron Calame stated that he did not think the article should have been published, reversing his strong support of theTimes in his June 2 column. "I haven't found any evidence in the intervening months that the surveillance program was illegal...The lack of appropriate oversight—to catch any abuses in the absence of media attention—was a key reason I originally supported publication. I think, however, that I gave it too much weight".[37]
In September 2006, however, the Belgian government declared that the SWIFT dealings with U.S. government authorities were, in fact, a breach of Belgian and European privacy laws.The New York Times editorBill Keller responded to Calame's "revisionist epiphany" in a letter published on November 6, 2006. Keller felt that Calame's premise that "the press should not reveal sensitive secret information unless there is a preponderance of evidence that the information exposes illegal or abusive actions by the government" set too high a bar. Keller explained, "The banking story landed in the context of a national debate about the concentration of executive power. The Swift program was the latest in a series of programs carried out without the customarychecks and balances—in this case, Congressional oversight. Key members of Congress who would normally be apprised of such a program and who would be expected to monitor its safeguards only learned of the program because we did".[38]