People say the darndest things when “Cheaters” host Joey Greco catches them in compromising positions. Presidents, too, sometimes find themselves on the defensive. When they do, we should think carefully about what they’re saying.
Admit it. You enjoyed the eight-year reality show that was the Clinton White House as much as I did. Before there was “Cheaters,” there was the President lyin’ and denyin.’ Before there was a “Real Housewives” franchise, there were rumors of the First Lady throwing a lamp (or was it a Bible?) at her husband (or was it a Secret Service agent)? Before we were Keeping Up with the Kardashians, we were delighting to gossip about the First Family of Dysfunction. The stories didn’t have to be true, only believable. And they almost always were.
When Republicans resorted to the constitutional artifice of impeachment to try to cancel the show, we punished them at the polls. As a reward, President Clinton promised to build us a “Bridge to the Twenty-First Century,” as though absent his intervention the earth would cease revolving around the sun and we would be forever trapped in 1999. But he must have built it because January 1, 2000 arrived right on schedule. (I know. The Twenty-First Century actually began in 2001, but the President insisted it began in 2000 and we all went along. Heck, we knew he didn’t really build a bridge, but we went along with that too.)
Then came that frigid wintry day when we got a new President, one whose personal life offered nothing of his predecessor’s titillation. He was followed by President Obama, whose high character, personal integrity and devotion to his family make him, well, boring as hell.
President Clinton’s departure left a void that no mere President could fill. It’s no coincidence that the ascendancy of reality TV roughly coincided with the end of his tenure. In his absence, celebrity gossip was too sporadic for our prurient appetites. So Hollywood began to manufacture sleaze for our continual consumption.
Meanwhile, we find ourselves contemplating a Hillary Presidency. Imagine her husband back in the White House, this time with the trappings of power but none of its encumbrances. The urge to reprise this 90s classic in the age of social media is irresistible. Who needs Ken Starr when we will be getting the photos on Twitter?
In the meantime, we are stuck with the very upright President Obama. Though he could not differ more from President Clinton, some lessons learned from his predecessor’s Presidency are still relevant. In particular, we learned that when a President (or any other public figure, for that matter) is on the defensive, we need to pay strict attention to the words they use in their defense.
When President Clinton, for example, emphatically denied having “sexual relations with that woman,” he was using his own highly specialized definition of “sexual relations.” When his lawyer claimed that “there is absolutely no sex of any kind in any manner, shape or form” between Clinton and his alleged paramour, the President said that the truthfulness of that claim “depends on what the meaning of the word ‘is’ is.” Since the President was seated at his lawyer’s elbow when those words were uttered, the statement was technically true.
I thought of President Clinton’s technical truth-telling as I looked over the transcript of President Obama’s recent interview with Charlie Rose. The President seemed uncharacteristically defensive at Rose’s gentle but prodding interview.
He made three points in support of NSA programs that collect phone records and monitor online activities that I believe were telling. The first had to do with what the government could and could not do under the programs; the second with the programs’ presumed “checks and balances” that guard against abuse; the third with the programs’ purported successes.
In dealing with what government can and cannot do, the President said:
“Now, one last point I want to make, because what you’ll hear is people say, ‘Okay, we have no evidence that it has been abused so far.’ And they say, ‘Let’s even grant that Obama’s not abusing it, that all these processes — DOJ is examining it. It’s being renewed periodically, et cetera — the very fact that there is all this data in bulk, it has the enormous potential for abuse,’ because they’ll say, you know, ‘You can — when you start looking at metadata, even if you don’t know the names, you can match it up, if there’s a call to an oncologist, and there’s a call to a lawyer, and — you can pair that up and figure out maybe this person’s dying, and they’re writing their will, and you can yield all this information.’ All of that is true. Except for the fact that for the government, under the program right now, to do that, it would be illegal. We would not be allowed to do that.”
The President begins by taunting his critics, suggesting that they have no evidence that government has “abused” the data it has secretly collected. That is obvious since, given the program’s secrecy, we’re not allowed to know what the government is doing with our data. More to the point, he doesn’t know either. It’s true that the NSA has procedures in place that are supposed to protect the information from abuse. It’s also true that Edward Snowden, a 29-year-old contractor, sat at his computer terminal in Hawaii and somehow gained access to all sorts of information that he wasn’t supposed to have. Snowden is living proof that while the government can gather data, it cannot control its use. The burden is on the President to show that there are no Edward Snowdens among NSA’s 30,000 employees or among the employees of other federal agencies and their contractors who can circumvent internal controls and gain access to information they’re not supposed to have. He has not met that burden.
His assurance that “under the program right now” it would be “illegal” for the agency to abuse our data looks suspiciously like technical truth-telling. The “right now” recalls President’ Clinton’s “depends on what the meaning of the word ‘is’ is.” It suggests that the protection against abuses is operative at this moment, but maybe not in the past or future. Constitutional safeguards have no expiration date.
His assurance that certain abuses would be illegal “under the program” is vacuous. “The program” is just that – a data collection scheme established by a federal agency. It is not a law. It makes nothing illegal. So the President’s assertion that there are no abuses “right now” because “under the program” they would be “illegal” really concedes nothing.
His effort to differentiate himself from former Vice President Dick Cheney, whom he believes was involved in improper intelligence gathering, rests on a “system of checks and balances.”
“My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances? So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program. And you’ve got Congress overseeing the program, not just the Intelligence Committee and not just the Judiciary Committee — but all of Congress had available to it before the last reauthorization exactly how this program works.”
Here the President, a former law professor, must know that he is playing fast and loose with the Constitution. He argues that, since all three branches of government have agreed to allow the NSA to collect our phone records, our liberties have somehow been protected. Not quite. It should first be noted that the FISA “court” is a unique body whose deliberations are secret and whose decisions are not subject to Supreme Court review.
More to the point, in issuing sweeping orders, the court behaves as though it were not tethered to the Constitution. The Fourth Amendment creates a right of the people to be “secure in their persons, houses, papers, and effects” and stipulates that government cannot collect your data without a warrant. Warrants have to be specific as to person and the thing sought. That is a substantive protection of your liberty that no court can ignore. A court cannot constitutionally issue a warrant to scoop up everybody’s phone records on the theory that somebody somewhere is doing something illegal and this might help catch him.
Having failed both to establish the program’s constitutional basis for collecting our data and to prove that it’s not been misused, the President offered a familiar, though important, final line of defense.
“The one thing people should understand about all these programs, though, is they have disrupted plots, not just here in the United States but overseas as well.”
I don’t mean at all to dispute what the President says or to downplay its significance. Terrorists already have succeeded three times in carrying out fatal attacks on Americans during his tenure. We all are grateful that there haven’t been more.
But there is great danger in this “end justifies the means” line of argument, however noble and important the end might be. The framers established limits on government, not so much because they feared that those who obtained power would deliberately set out to harm the people. They limited its power because they knew that those with good intentions would, in pursuit of those intentions, improperly enlarge government power at the expense of individual liberty.
Government power is never more dangerous than in the hands of those who are convinced that they are using it for the good of others. King George never saw himself as the colonists’ oppressor; in his mind at least, he was their protector. His intentions were good. While the colonists might chafe under his ministrations, he was only acting in their best interests, or so he thought. The founders thought otherwise and in throwing off the King’s gentle yoke they placed hard limits on their new government.
Those limits are always in danger of breach. The President has acknowledged the danger, telling Charlie Rose:
“I’ve stood up a privacy and civil liberties oversight board, made up of independent citizens including some fierce civil libertarians. I’ll be meeting with them. And what I want to do is to set up and structure a national conversation, not only about these two programs, but also the general problem of data, big data sets, because this is not going to be restricted to government entities.”
The Constitution spells out how to “set up and structure a national conversation.” It’s called Congress. A board appointed by the President lacks legal authority to rein in government overreach, however “fierce” its members may be. If the President were serious in his intention to protect us against overly broad government data collection, he would do what he has done on issues that he cares about, like immigration and gun control: call on Congress to pass legislation establishing clear limits on government snooping.
Judging from the President’s carefully chosen words, he appears disinclined to do so.
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