White House Refuses To Say If We're 'Less Safe' After PATRIOT Act Provisions Expired

from the telling dept

Last week, we wrote about the NY Times allowing White House officials to go on the record anonymously claiming that all hell will break loose if Congress didn't figure out a way to extend Section 215 of the PATRIOT Act. Here were the ridiculously over-the-top statements from the White House, which the NY Times stenographer dutifully copied down without question or counterpoint:

“What you’re doing, essentially, is you’re playing national security Russian roulette,” one senior administration official said of allowing the powers to lapse. That prospect appears increasingly likely with the measure, the USA Freedom Act, stalled and lawmakers in their home states and districts during a congressional recess.

“We’re in uncharted waters,” another senior member of the administration said at a briefing organized by the White House, where three officials spoke with reporters about the consequences of inaction by Congress. “We have not had to confront addressing the terrorist threat without these authorities, and it’s going to be fraught with unnecessary risk.”

And, now, of course, as you know, the various minor surveillance provisions have, in fact, expired, if only briefly, meaning that the programs are kinda, sorta no longer running (there are exceptions, other authorities and the ability to "grandfather" in some investigations... so...). Given all that ridiculous bluster last week, you'd think that the White House (now on the record, as opposed to hiding behind bogus "senior official" monikers) would be willing to come out and say that we're now less safe.

No dice.

In yesterday's press briefing, chief spokesperson Josh Earnest did everything possible to avoid the question. He did kick it off by saying that the results "have had an impact on the ability -- or on the authorities that our national security professionals can use to keep us safe," but that's tap dancing. Of course it "has an impact." It took away some programs. But the question is what kind of impact? And there, Earnest will not say. At all.

Well, I don’t have any details to share about either ongoing or recently started national security investigations. What we’ve also acknowledged is true is that our national security professionals have other tools that they can use to conduct investigations. They don’t have tools that replace these critically -- these important authorities, but there are other tools that they can use to conduct investigations.

First of all, the programs in question have not been shown to be "critical" or "important." The lone wolf provision has never even been used, and the 215 program (despite being illegal under 215 according to the 2nd Circuit appeals court) has been reviewed by multiple judges, Senate intelligence staffers and two separate White House advisory boards and was found not to have been useful in stopping a single domestic terrorist attack. So why does he keep claiming they're "critical" or "important"?

One reporter calls him out on this, asking about any examples of where those programs have been useful, and Earnest provides nothing:

Q Just first, on the security of Americans right now. You weren’t able to comment about whether in these 13 hours there’s been any problems. But let’s go back, if we can, in history here. Can you point to anything in the past that would not have been successful under these current conditions? Is there somebody we would not have caught? Is there something that you could explain to Americans why this is so important, using history?

MR. EARNEST: Well, there are -- probably not in as much detail as will satisfy you right at the top here, but I think I can offer up two compelling reasons why our national security professionals say that having these authorities is important to the national security of the country.

The first is that there are recent examples -- I can’t go into those examples -- but recent examples where our national security professionals say that information that they obtained using these authorities was information that they were not previously aware of. And that’s an indication that these authorities have succeeded in eliciting information that’s been critical to ongoing investigations.

The second thing is that the way that our investigators talk about this information is that these pieces of information as they’re collected are critically important building blocks to an investigation. And what that means is it means that a clearer picture is provided when you put a variety of pieces of information together; that as it fits together, you get a clearer sense of what it is that you’re investigating.

Got that? He can't say if they've actually been useful (because they haven't), but he can say, without providing any details, that some information obtained under these programs was "information they were not previously aware of." But, again, if that's the standard under which these things are judged, you can authorize just about any program at all. That's not the point. The standard needs to be (1) does the program obey the Constitution and (2) is it critical to investigations. These programs have failed on both accounts.

Then we get to the big question: given the statements last week, does this mean that we're now all less safe? One reporter asks the question by requesting Earnest rank the situation:

Q So I think what many in the public might want to really hear from the White House is, on a scale of one to ten, how much less safe are we today than we were on Saturday?

MR. EARNEST: Well, that is something that our national security professionals can speak more directly to. I think the way that I would characterize it is simply this, Jim -- that we have these authorities that were included in the Patriot Act, the majority of which are not controversial and have been in place since 2001, and as our national security professionals tell us, have been used to elicit information that’s been valuable to ongoing national security investigations.

Okay, so that's not answering the question. And then Earnest goes into silly town:

And so the question that you’ve heard me offer up a few times from the podium here over the last week or so is simply, why would we add unnecessary risk to the country and our national security because of Congress’s failure to act?

1. Because the existing program is unconstitutional. And 2. Because there is no evidence that it adds any unnecessary risk -- as shown by the fact that even you won't say that we're any less safe today than in the past.

After a few other questions, another reporter goes back to that question of how much less safe are we. Again, Earnest refuses to answer:

Q Good to see you. You didn’t answer Jim’s question about the 1 to 10 point scale. But just to really put it bluntly, are the American people clearly less safe today than they were last week?

MR. EARNEST: Well, again, that is a judgment that one of our national security professionals could make based on their own efforts to investigate this.

Q Right, but you went through this whole list of things that are not available now. It sounds that the implication of that is that we are less safe now than we were just a day or two ago.

MR. EARNEST: Well, again, I’ll let people draw whatever conclusion they would like. But the one -- the fact that I can confirm for you is that there are specific tools that our national security professionals have previously used to conduct national security investigations that they can, as of today, no longer use because of the partisan dysfunction in the United States Senate.

That same reporter then follows it up by pointing to CIA director John Brennan's fearmongering about what will happen, to ask the question another way. And, again, Earnest employs his expertise in tap dancing:

Q CIA Director Brennan said over the weekend that if the law lapsed, and of course it now has, the FBI would lose the ability to track people intent on carrying out attacks on the homeland. Is that correct?

MR. EARNEST: Well, I'm certainly not going to contradict the Director of the CIA --

Q So we have lost the ability for -- the FBI has lost the ability to track people who are intent on carrying out attacks on the homeland?

MR. EARNEST: Well, there are a variety of tools that are used by our national security professionals to conduct both law enforcement and national security investigations. But what is clear is that there are tools that are critical to that effort that are no longer available -- or at least as of today are no available to our national security professionals.

Except those tools are not critical. He keeps saying they are, even though everyone who's looked at them has said otherwise.

The same reporter then points to a quote from Senator Lindsey Graham claiming that we're less safe today, and asking for a comment from the White House, leading to this:

MR. EARNEST: Well, there have been a number of pronouncements and accusations that have been lobbed by those who aspire to occupy the Oval Office in early 2017. And I'm not going to get into a -- I’ve done my best to try to avoid getting into a back and forth with any of them on a specific issue. So while I obviously disagree with the sentiments expressed by Senator Graham, I don’t have an interest in getting into a back and forth with him at this point.

Q So we’re not less safe today?

MR. EARNEST: I obviously don’t agree with what Senator Graham had to say today in kicking off his campaign.

Hmm. So, it appears that he's saying that we're not, in fact, less safe, after refusing to answer that question directly, and he "doesn't agree" with Graham's comments that we are less safe.

A while later, another reporter brings up the fact that there's no evidence at all that these programs were ever useful, and notes how weird it is that Earnest won't comment on how the programs were actually useful and won't say if we're "less safe" now that the program has expired:

Q People who are opposed to certain parts of the Patriot Act have been pretty explicit in outlining these ways that they didn’t really help certain cases, or that there are other methods to get the same information. But conversely, you and the administration, you can’t list or won’t list any concrete examples of how it did help; you won’t say whether the American public is less safe now. If this is so important, doesn’t your argument seem to be weaker than those in opposition? And isn’t that contributing to the controversy that’s out there?

MR. EARNEST: That certainly is not the conclusion of 338 Democrats and Republicans in the House of Representatives who came together around a common-sense bipartisan proposal that would implement reforms, that would strengthen civil liberties protections while also reauthorizing tools that our national security professionals say are important to keeping us safe.

I think the other thing that’s true is that we’ve heard a lot of claims on the other side of this argument that haven’t borne out to be true. And there has been an effort on the part of the administration, even given the constraints that we have about talking about classified or highly sensitive national security programs, to be as honest and forthright and candid about these programs and about the impact that they have on our national security.

What? "As honest and forthright and candid about these programs and about the impact that they have on our national security"? Is he joking? The administration has been nothing but unclear, dishonest and misleading about all of those things -- and that's continued in this very press briefing. The programs have been conclusively proven not to be useful (and likely not to be constitutional), yet he keeps insisting they're "critical" or "important." And then, after fearmongering about what would happen if they expired, the administration refuses to now say we're "less safe" because of the political baggage that would entail.

The whole thing is political. The President knows that saying "we're less safe now" is politically damaging (especially when it's not true). It's pure fearmongering. They said it beforehand to try to get their way, but now know that it will look "weak" to say it today. It's all a big theatrical political show.

Q But when we keep talking about national security, you use the word “safe” almost every other word in some of your statements. So if you feel so strongly about some of these programs without being able to give any concrete examples of them working, why can’t you at least say that the American public is less safe without them? It almost seems like you’re going just up to that point. Do you feel that way or don’t you feel that way?

MR. EARNEST: Well, I would encourage you to ask some of our national security professionals. You’ve heard the FBI Director, Jim Comey, talk about how important these tools are to their work. I saw that the Director of the Central Intelligence Agency, John Brennan, was on Chip’s network over the weekend, talking about how these programs and these authorities were integral to the efforts of the intelligence community. So I would defer to those professionals. They can give you the best assessment.

All I can say is -- make the simple, fact-based observation that there are tools that our national security professionals say are important to their work that today they don’t have because of a bunch of Republican senators who played politics with these issue over the last couple of weeks.

In other words, the President won't say we're less safe, because (1) it's not true and (2) it's not politically feasible (or, really, reverse that order), but I'll point you to the fearmongerers in charge who want more power, because they'll say just about anything to get more powers to spy on Americans.

And despite their refusing to answer the question, those pesky reporters keep going back to it:

Q I want to just follow up on something Michelle asked you. I’ve seen you be very forceful about a number of issues, but I also can tell when you’re being careful. It seems to me when you won’t just come out and say “we are less safe,” there’s a reason behind it. And I’m just wondering, is it because, frankly, we’re not less safe because the Patriot Act provisions have elapsed? Are we basically the same because there are plenty of other tools available already?

MR. EARNEST: Well, Kevin, all I can do is I can illustrate to you very clearly that there are tools that had previously been available to our national security professionals that are not available today because the Senate didn’t do their job, because we saw Republicans in the Senate engage in a lot of political back and forth as opposed to engaging in the critically important work of the country.

And as a result, there are programs and tools that our national security professionals themselves say are important to their work that are not available to them right now as we speak. And that’s why we urge the Senate to set aside the politicking and actually focus on their basic responsibility. And we’re hopeful that they will vote in favor of the common-sense, bipartisan reform proposal that’s already passed the House of Representatives.

Once again, this is all just political theater. Everyone knows that these provisions are not critical and not necessary, and having them expire is more symbolic than anything else. But no one seems to be willing to flat out call the administration's bluff here. It insisted these programs were necessary and now that they're gone, no one is any less safe at all.

Filed Under: intelligence community, josh earnest, less safe, patriot act, section 215, spokesperson, surveillance, white house

White House Spokesperson Insists Obama Is The Most Transparent President In History, Because... Visitor Logs!

from the you-said-what-now? dept

The rather astoundingly named Josh Earnest is the recently appointed press secretary of President Obama, and he's kicked off his tenure with quite a whopper: insisting that, despite complaints from basically every corner, President Obama really is "the most transparent President in history." As you may recall, President Obama promised upon election that he would be "the most open and transparent" President, and one of his first orders of business in the White House was to promise the same.

Of course, as many folks have been documenting for years, the reality has been anything but. The Obama administration has been ridiculously secretive for years, when it comes to FOIA requests, literally setting records in denying them. The NYT's former executive editor, who has covered many administrations, has directly noted that the Obama administration was the most secretive she could recall. Even federal judges have regularly dinged the administration for refusing to hand over documents required by law. As Stephen Colbert has noted, the administration is really only good at the most transparent bullshit legally allowed.

In fact, just as Mr. Earnest was insisting that the Obama administration was so damn transparent, Mother Jones had a good article about how often the Obama administration was making use of the "state secrets privilege" to get lawsuits tossed out, such as in various no fly list challenges. In 2008, then candidate Obama insisted that the use of the state secrets privilege by the government was dangerous. But, now that he's in charge, he's quick to use it himself:

In 2008, Obama griped that the Bush administration invoked the state secrets privilege "more than any other previous administration" and used it to get entire lawsuits thrown out of court. Critics noted that deploying the state secrets privilege allowed the Bush administration to shut down cases that might have revealed government misconduct or caused embarrassment, including those regarding constitutionally dubious warrantless wiretapping and the CIA's kidnapping and torture of Khaled el-Masri, a German car salesman the government had mistaken for an alleged Al Qaeda leader with the same name. After Obama took office, his attorney general, Eric Holder, promised to significantly limit the use of this controversial legal doctrine. Holder vowed never to use it to "conceal violations of the law, inefficiency, or administrative error" or "prevent embarrassment to a person, organization, or agency of the United States Government."

Despite this promise, Obama continued to assert the privilege to squelch cases about Bush-era abuses. In one instance, the Justice Department scuttled a lawsuit brought by a man who claimed he had been kidnapped by the CIA and had his penis and testicles cut with a scalpel in a Moroccan prison. And now Obama is broadening the use of this legal maneuver: In the past 18 months, the Obama administration has twice cited state secrets to prevent federal courts from considering lawsuits challenging its use of the no-fly list.

So, given all this evidence that the Obama administration is incredibly secretive, what could Earnest's reasoning possibly be? Well, you see, President Obama has released his visitor logs at the White House. Because, you know, that's what everyone really means when they talk about White House transparency.

Earnest noted that previous administrations had “gone to the Supreme Court” to prevent the release of White House visitor information, but that the Obama administration “releases it voluntarily on the Internet on a quarterly basis.”

“Reporters for years clamored to get access to fundraisers the president hosted or attended that were hosted in private homes,” Earnest continued. “Reporters now have access to those when this president goes to a private home.”

So, the President has made a few tiny concessions to transparency on issues that really don't matter at all, but has doubled down on secrecy on the things that do actually matter.

Sure, I know that the Press Secretary's job is to basically cover for the President and do whatever possible to defend the White House's claims, no matter how bogus, but wouldn't the world be better off if there were actually a tiny bit of honesty from such folks? They could admit that they've tried and failed. They could say that transparency promises seemed easier from the outside, but turned out to be more difficult in reality. They could admit that it's still a work in progress. Any of those would at least acknowledge reality. Pretending reality isn't reality doesn't convince anyone. In fact, it just appears to be yet another example of the very non-transparency that everyone's complaining about in the first place.

Filed Under: barack obama, foia, josh earnest, no fly list, secrecy, state secrets, transparency, visitor logs, white house