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Sunshine Week transcript! HuffPost Live Panel: Least Transparent Ever?

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Alicia Menendez, Tommy Vietor, Kevin Gosztola, Marcy Wheeler, Trevor Timm
Original date: 
Wednesday, March 13, 2013 - 12:30pm
Thursday, March 14, 2013 - 9:00pm

The self-proclaimed "most transparent Administration in history" just rejected more FOIA requests than ever, a 22% increase. Just how transparent is this White House?

This is my last Sunshine Week transcript, and this one is notable for the spectacle of watching former National Security Council spokesman Tommy Vietor effortlessly turn questions of substance into answers of nerf. And he's so nice! Who could be mad?

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Least Transparent Ever?
Originally aired on March 13, 2013

Hosted by:
Alicia Menendez
Tommy Vietor @TVietor08 (Washington, DC) Former National Security Council Spokesman
Kevin Gosztola @kgosztola (Washington, DC) Journalist at FireDogLake
Marcy Wheeler @emptywheel (Grand Rapids, MI) Investigative Blogger and Journalist at Emptywheel
Trevor Timm @trevortimm (Austin, TX) Activist at the Electronic Frontier Foundation


ALICIA MENENDEZ: I’m Alicia Menendez and you’re watching HuffPost Live. During a fireside Google hangout last month, President Obama was challenged by a voter who questioned his White House’s commitment to transparency. The president disagreed.

Obama: This is the most transparent administration in history, and I can document how that is the case. Everything from every visitor that comes into the White House is now part of the public record. That’s something that we changed. Just about every law that we pass, every rule that we, uh, uh, implement, we put on line for everybody there to see.

With the White House press corps grumbling about lack of access, secret kill lists being tightly guarded, and the Obama administration denying a record number of Freedom of Information requests, is this White House truly transparent? Joining us to discuss, we have Tommy Vietor, he is President Obama’s former National Security Council spokesman; Kevin Gosztola, who’s a journalist at Firedoglake; Marcy Wheeler, investigative blogger and journalist at emptywheel; and Trevor Timm, activist at the Electronic Frontier Foundation. Great to see everyone here.

Tommy, you know there’s this great e-mail that you sent out when you left the White House that Media Bistro had picked up, and I want to pull up a quote from it. You write,

In the interest of full disclosure: I will not miss your calls after 10pm. I will not miss your calls before 6am. I will not miss 3am press charter call times. You will not miss me saying, 'I don’t have anything for you on that,' or some of the e-mails I have sent that would make Gene Sperling blush.

So, putting aside your incredible sense of humor on the matter, do you think there’s any fairness to this criticism that the Obama administration has been hostile to the press?

TOMMY VIETOR: Uh, well, first of all, thanks for reading the e-mail. I was glad someone leaked it immediately upon me sending it. It left out the part about, you know, how much I appreciate working with these journalists, a lot of them who, you know, work [...] Syria or Iraq, where their lives are at risk, and you know I have great respect for that.

I think that any press corps in the White House, there’s going to be a tension. The press is doing the right thing by pushing for more access, and the White House is going to evaluate that on a case-by-case basis. I don’t think anyone’s ever going to be content. I don’t think anyone should necessarily be content. Because, you know, it’s the job of the White House Correspondents Association to advocate. And that’s appropriate.

ALICIA MENENDEZ: Tommy, how many times were there when you wished you could have said more?

TOMMY VIETOR: Every second of every day.


TOMMY VIETOR: And look, I worked in national security issues mostly, and so a lot of the information I was dealing with was sensitive or classified or, you know, could jeopardize certain things. The primary concern we had was sources and methods, and what that means is if someone publishes something that says, according to intercepted e-mails that the individual’s e-mails we intercepted, be they, you know, some Al Qaeda member would then know, and then, you know, we’re blown out of the water. So, you know, that’s the sort of – those are the equities we’re balancing. And, you know, so there's a lot of other things that the president did to increase transparency – the visitor logs and the other things he mentioned in the clip you played. But no, you know, I don’t think that everyone’s going to be completely satisfied, but this is, you know, a constant effort to perfect the process in our democracy.

ALICIA MENENDEZ: Kevin, we posed this question about transparency to our community and one community member, Justice Holmes, wrote back: “He,” meaning Obama, “is not transparent unless he has redefined transparency to mean secretive, opaque and locked down, which is, of course, possible.” And it seems to me that it’s not just a question of these FOIA requests being fulfilled, it’s also a lack of clarity around the standards they’re using to judge whether or not they deserve a response.

KEVIN GOSZTOLA: Yeah, as the AP has pointed out recently, the national security exemptions are being claimed more than previously under the Obama administration, and I think the one thing to consider about the way that they’re approaching national security and transparency is that it does not appear that the Obama administration when talking about transparency and openness is really quite that interested in having the light shined on what is going on in terms of policy, and I’m sure maybe we’ll get into specifics as we go on in this segment, but if we’re talking about directives on how cybersecurity policy is going to be handled, that’s secret. If we’re talking about the secret law that is being used for drone strikes, that’s still secret. And there’s just [phone ring song] many different ways that in fact everything is being kept secret.

ALICIA MENENDEZ: Yeah, that’s President Obama calling you on the line. [laughter] Just in case you were wondering. And Tommy, listen, that’s the list of usual suspects, right? Drone strikes, targeted kill lists. Is there any response you can give that is more satisfying than “no comment’?

TOMMY VIETOR: Of course. So, okay, let’s take drones. Drones a decade ago were cutting edge, very secret technology. We’ve come a long way in a decade. There used to be a time when the administration didn’t even talk about their existence or their use in hot battlefields like Afghanistan. So what I guess I’d tell people to look at is, look at the way drones were discussed in 2008 compared to now. Take a look at speeches by Harold Koh or the attorney general Eric Holder where he talked about the targeting of U.S. citizens. Take a look at remarks made by John Brennan at the Wilson Center where he talked in great detail about the targeting criteria and processes we used, or the administration used – I don’t work there anymore – to target Al Qaeda members. Also, the administration has declassified the fact that drones take lethal action, they take kinetic strikes in Somalia and Yemen. That used to be secret. And so, you know, government has an awful lot of inertia. And it’s hard to move things, especially in really sensitive matters like drone strikes or counterterrorism. I would argue that President Obama has actually pushed the envelope pretty far. So have people like John Brennan. And so, you know, the president said in his State of the Union that he's going to do more on this and further, you know, talk about the transparency around these counterterrorism issues for a number of reasons. One, the president thinks, and he said this many times, that these are important issues that we should debate. Right? We came out of a decade of war and now this is more the new normal in terms of how the United States conducts counterterrorism. We should talk about it more. So we agree. The president agrees. Two, you know, these technologies are proliferating. And the best way I think, you know the administration thinks, to constrain other countries as they develop these tools is to make clear the practices and procedures we use so that there is a global standard out there. That’s not perfect, you know, it’s not going to prevent China or Russia from doing things we don’t want them to do with these tools in the future, but that’s just one of the considerations the administration has taken in terms of discussing these issues.

ALICIA MENENDEZ: Marcy, why aren’t those answers good enough?

MARCY WHEELER: Let’s take the drones. We have this white paper. One of my favorite parts about it is that it actually cites a John Brennan speech – it’s an earlier speech from 2011, where he basically says, “Unless you respond to FOIA presumptively” – in other words, presumptively favoring release – “and unless you release OLC opinions that can be released, the terrorists win.” I’m glossing, but that’s sort of the idea.

TOMMY VIETOR: Let’s not gloss. Let’s say what he actually – let’s read the quote. (laughs)

MARCY WHEELER: Well, I mean, but it says that part of beating the terrorists is embracing this culture of transparency. And with that white paper, you have – it’s at the end of that 2011 speech, okay, so there’s this whole package that goes back to the National Archives speech. And in this white paper they first of all didn’t even release it to Congress until after – I mean it was like eight months after it was written. They didn’t release it to Congress until after the administration had replied to the ACLU FOIA. They gave it to Congress the day after. The Office of Information Policy within ACLU imposed this arbitrary deadline on the ACLU FOIA response so that it would hide this unclassified white paper. The person – one of the people involved in the white paper is now arguing these FOIA cases; this is the acting head of the Civil Division. Tommy mentioned the speeches that have been made, John Brennan’s – all of them pretend that the only drone strikes we take, we engage in, are targeted. So that hides the whole signature strikes aspect. Attorney General Holder hid the fact that DOJ was very concerned about whether the drone strike that killed Anwar Awlaki constituted murder, constituted war crimes. Those parts didn’t show up in Eric Holder’s speech, but they do show up, and they are the bulk, actually, of the white paper. And then the funniest thing of all is there’s all these speeches that the administration has given about drone strikes including the CIA general counsel Stephen Preston gave one where he specifically addressed how the CIA would be involved in lethal strikes, lethal operations. He admitted they had been involved in the Osama bin Laden one, but he also set up this framework for what would happen if they were involved in lethal strikes generally. And that speech, you notice that Tommy didn’t mention that, and the reason why is because that speech has effectively been Glomared. So the CIA refuses to confirm or deny that that speech addresses the targeted killing of Anwar Awlaki. And, you know, these are legal strategies that the administration is engaging in. I get that. But they turn the whole claim to transparency into just, to a joke, because it’s obvious what they’re doing, you know the way they’re trying to game the system is obvious once you map everything out, but yet, you know, you’re going to go out there and say, “Well, we’ve engaged in transparency.”

ALICIA MENENDEZ: Tommy? That is a lot to respond to. I will let you pick and choose what you would like to, if anything at all.

TOMMY VIETOR: First of all, Glomar is like my favorite word ever.


TOMMY VIETOR: Acronym or whatever. Thank you for namechecking that one. I didn’t mention that speech because I don’t remember that, but that’s fine, doesn’t mean it didn’t happen. Here’s what I’d say generally. Like, let’s not let perfect be the enemy of the good. You guys are doing what you should be doing, which is advocating fiercely on behalf of increased transparency. I respect that. The president respects that. You should keep doing that. Keep pounding away with FOIAs and, you know, speaking out and asking for more. But I just want to sort of step back and see if I can give people of what it’s like to be a White House spokesman on these issues. So, say, you know, Barack Obama releases all, takes a pretty big step and releases all the visitor records, all the [ways?] records. Like, this was a monster fight between people and the Bush-Cheney administration when we were trying to get records of who met on his energy task force, you know, and a whole bunch of other instances. So this is actually a pretty big deal. And since then they’ve released about 3 million or so records. And so, as a person who works there, what you get when you do that is you get a story that the lead is, you know, “Barack Obama released a whole bunch of data today, comma, you know, but, quote, your you know absolutist advocacy organization that said it didn’t go far enough for this reason, and like Ed Henry’s pissed that the White House Correspondents Association wasn’t livestreaming it. And so, you know, they – you’re never going to get credit for this stuff. And then what’s going to happen is every day after the RNC and other organizations are going to mine that data for attacks against the administration. And so, look, I’m not sitting here saying that we shouldn’t do this just because transparency is good, but what I’m pointing out is that there is a perverse disincentive to transparency for future administrations when they see that there’s not a lot of benefit that comes for it. Like, we did this, the administration did these things because the president thought it was the right thing to do. But, you know, if you were advising a future administration, it’s a hard sell to tell them that this is going to improve – that you’re going to get a lot of credit for it.

ALICIA MENENDEZ: Yeah, Trevor, there’s a natural conversation brewing in our comment wall that I want to bring you into. Justice Holmes saying, “Obama’s Sunshine Week is like Bush’s Clean Skies,” skirtsteak saying, "We lost our extremely good chance at accountability in the White House during the last administration. They lied, they were caught, they were let go without testifying. Game over.” And Jan, who wants to know, is Obama less transparent than Bush?" I mean, there’s a natural comparative point here.

TREVOR TIMM: Yeah, well. I mean, I want to go back to the White House records point because I think it’s important. You know, it’s great that Obama has released those records, but the real problem is, and I think it’s why he’s not getting credit from a lot of these groups, is that he is still actually to this day arguing in court that those records are exempt from the Freedom of Information Act. So if for one day he decides that he doesn’t want to release them, there’s no way for the public to actually get those records. And when the next president comes in, if they also decide that they don’t want to release them, then they could go ahead and do that.

TOMMY VIETOR: Trevor, that's subject to the Presidential Records Act, right? So is every e-mail I ever sent.

TREVOR TIMM: Well, according –

TOMMY VIETOR: So is every idiotic thing I sent to Sam Stein, like during a White House briefing, will be in a database somewhere for my children to mine and mock me. So there is a tradeoff here.

TREVOR TIMM: Right, but, correct if I’m wrong, but I think the District Court ruled that they were subject to FOIA and the Obama administration is still fighting it in the Appeals Court. So, it’s not –

TOMMY VIETOR: [...], sorry.

TREVOR TIMM: Right, yeah, I understand that, but I’m saying that, you know, a lot of people disagree and a lot of open records advocates are saying, “Why aren’t these records subject to FOIA?" But anyways, you know, and I think your point about Obama talking about drones more is great. We would love to hear him talk about drones more. And, you know, groups like us, we’re not asking for sources and methods or the high tech technology that is being used in drones. What we’re asking for is legal interpretations of laws that already exist. You know, when Obama can talk about drones in public or, you know, his associates can go to the New York Times and talk anonymously, yet when it comes to the court case involving targeted killing, they still won’t confirm or deny that the program even exists, which is absolutely absurd at this point. And, you know, the legal opinions, they won’t even give them to the Judiciary Committee on the Senate. Patrick Leahy, a big supporter of President Obama, actually voted against the CIA nominee for this reason. And we see this all over the place with secret law. President Obama talked about in that Google hangout about how he posts laws a few days in advance before signing them. But the problem is, there’s a bunch of interpretations he’s keeping secret. So we were actually in court yesterday about the secret interpretation of the Patriot Act. The government not only won’t give us the interpretation, they won’t even tell us how many pages their interpretation is. You know, so it's these types of issues in the national security realm that are really frustrating. And it’s not that we want – you know, obviously the government needs to keep secrets. But to keep the interpretation of public laws secret, you know, is really disconcerting, and I think that’s where a lot of the problem stems from.

ALICIA MENENDEZ: I love it, Tommy is following the closest he can to the no comment model, just by hoping that if he stays silent we’ll move on. And I do want to move on to this next piece. This is from Andrew Sullivan, a piece of criticism from him. He writes:

What staggers me is the transition from candidate Obama to president. Many of us thought this one was different. He understood the new era of mass information and social media. He grasped the need to communicate directly to Americans in all sorts of unconventional ways. He pledged to end the abuses of executive power under Bush and he promised to be the most transparent administration in history. And yet, when it comes to how he decides whether to kill you sitting in your living room, he won’t let you know the legal basis for it or allow a check from another branch of government that is not just a rubber stamp. It’s unacceptable.

I mean, Tommy, you were there in the early days at those hope and change rallies in New Hampshire. Did you think you were going to be working for an administration – not New Hampshire, okay, not New Hampshire. But you were there in the early days when that was the entire vibe. And did you, in those days, imagine that you would be working for an administration that thought it could justify killing American citizens?

TOMMY VIETOR: Look, a couple things. Barack Obama never said, “I will livestream from the sit room. The PDB will be on my website every day.” Right? I mean, there are sensitive, deliberative counterterrorism discussions that should remain secret because we don’t need people that are on the other side of those discussions to know, you know, who is being targeted, how, where, when and w–

KEVIN GOSZTOLA: Respectfully, neither of us are asking for situation room discussions. So that’s a nice red herring.

TOMMY VIETOR: Well, thank you. It’s a tried and true technique. [laughter] But, you know, so we’re asking about what is, like, the legal justification for counterterrorism? It’s the AUMF, right? The Authorization of Use of Military Force as passed by Congress.

: More what I'm asking,Tommy, is you have a candidate who’s very clear about this desire to be transparent. And I truly take him at his word that that was his anticipation. And it does seem to me that something changes, whether it’s Barack Obama or George Bush, something changes when you get in that White House and you all of a sudden have a real sense of the information that’s at your disposal. You were there. You watched that evolution. I mean, does that happen overnight, or is it a slow process away from transparency?

TOMMY VIETOR: Here’s what I’d say. The spirit of what he said is still something he deeply believes, and we have moved the envelope and increased discussion of these sensitive counterterrorism issues. But, I mean, I think, you know, there are going to be limits to those things. And there’s limits to, you know, what I’m going to be able to say in or outside of government because some things remain secret and there are certain legal obligations. Now the president has pushed the government a long way in terms of talking about our targeted counterterrorism efforts. And I – you know, he said he will continue to do so. And so, you know, I guess my point remains, let’s not let perfect be the enemy of the good. You know, we should give him some credit for what he’s done, and that the people who are advocating and pushing and filing lawsuits should continue doing so because that’s a totally appropriate role. You know, that’s what makes this whole democracy work.

ALICIA MENENDEZ: Marcy, is that satisfying?

TOMMY VIETOR: Not at all.

MARCY WHEELER: (laughs) No, I mean, I think that it is a nice line, but there’s still so much that the administration has done contrary to the spirit of that line. I mean, just as an example, while EFF was in court yesterday arguing to get the secret interpretation of the Patriot Act, James Clapper was sitting before the Senate Intelligence Committee saying, “We can’t have – I should never have to answer questions in open session about these questions,” and then Ron Wyden said to him, “Tell us when Americans can be tracked.” So this is not when can Anwar Awlaki be killed in his living room, it’s tell us what authority the government is still using to track Americans. And James Clapper got really testy and basically refused to answer the question. And he kept saying, “Well, go ask the FBI because I’m going to pretend that there isn’t a whole another body of law,” which is what Trevor was talking about, “that we’re using to track the geolocation of Americans.” And that’s an example. I mean, if Obama’s Director of National Intelligence refuses to even answer questions in public session before oversight committees about really basic interpretations of law, that kind of undermines the whole notion, which is nice, of the most transparent administration in history.

TOMMY VIETOR: Well, look, I’m such a massive loser that I actually watched a lot of that hearing on C-SPAN 3 yesterday from my home and –

MARCY WHEELER: It was a good show.

TOMMY VIETOR: It was pretty interesting. And so, look, you know, imagine you’re Jim Clapper. You live in this world where you do nothing but see classified or sensitive documents. And, you know, it’s profoundly uncomfortable for these guys to have to go answer – this was a global threats hearing for the people back home who aren’t as lame as me – to have to answer like really, really sensitive, pointed questions about what are frequently sensitive or classified matters at an open hearing. So, I mean, that gets at their concern about these issues more broadly. You know, I think –

MARCY WHEELER: But James Clapper –

TOMMY VIETOR: [...] answer that question.

MARCY WHEELER: I mean, James Clapper also is the guy who last year tried to avoid even telling, making public the number of people with clearances, you know, and Congress pushed back on him, but he gave Congress this list of about 30 kinds of oversight and said, “Disappear them for me,” and Congress pushed back and disappeared only 20 of them. But I mean it was just nonsense that he wanted to hide the number, that, what is it, 1.5 million people have clearance in this country because it tells us how big our secret government is.

TOMMY VIETOR: That’s top secret.

MARCY WHEELER: And that’s just an example of, you know, Obama may believe that we need more transparency in government, but if some of his key policy people don’t, then I think, you know, it undermines whatever good will the president is going to get by saying these things, because the people going before Congress say something entirely different.

ALICIA MENENDEZ: Marcy, I think that’s a perfect note to end on. I want to thank you all for joining us, Tommy, Kevin, Marcy and Trevor. Tommy’s going to stick with us. The conversation continues here at HuffPost Live.

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