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Balancing Security And Privacy; Saving Obama's Second Term

Aired December 18, 2013 - 18:28   ET



ANNOUNCER: Tonight on CROSSFIRE, changing the rules for spying on everyone. A brand-new report urges the president to reign in the NSA's massive collection of cell phone and Internet data. Will that put us at risk?

UNIDENTIFIED MALE: The message is very clear: NSA, you've gone too far.

On the left, Van Jones. On the right S.E. Cupp. In the CROSSFIRE, Ruth Marcus, a liberal columnist, and Bill Kristol, a conservative editor.

Balancing national security and your privacy, tonight on CROSSFIRE.


S.E. CUPP, CO-HOST: Welcome to CROSSFIRE. I'm S.E. Cupp on the right.

VAN JONES, CO-HOST: And I'm Van Jones on the left. In the CROSSFIRE tonight, we've got two guests who disagree with me and S.E. about the government's spying program.


JONES: That's right. Here's the headline you very rarely hear. S.E. Cupp and Van Jones actually agree on something.

CUPP: True story.

JONES: This is because the libertarians and liberals are both worried about the NSA snooping around. And this afternoon, the White House released an independent report, and it calls for tighter restraint. So that's good.

You can't just burn the Constitution, let the government create a secret court and a secret program to collect massive information, and then think nobody is ever going to do anything bad with all the data. That we might feel safer with that, but our freedom will not be secure.

CUPP: I don't -- I don't have a counterpoint. Ditto. Agreed.

JONES: History has been made. CUPP: In the CROSSFIRE tonight, Ruth Marcus, a columnist and editorial writer for "The Washington Post," and Bill Kristol, editor of "The Weekly Standard."

Bill, I am as big a hawk as it gets. I'm warheads on foreheads. But you have to explain something to me. A judge ruled this week that at least some of the NSA's spying programs are unconstitutional. The administration's claims that the numbers of terrorist attacks thwarted has been seriously questioned and diminished by the NSA itself.

And today we get a report saying that the NSA has overreached and needs to be reined in. What's your defense of these spying programs?

BILL KRISTOL, EDITOR, "WEEKLY STANDARD": You know, I have such a high regard for you, S.E.

CUPP: Oh, no. So are we going to fight?

KRISTOL: Seeing you -- seeing you say that sentence after Van said his predictable thing.

CUPP: Hey, when you're right, you're right.

KRISTOL: When you -- when you just said, "I agree, Van," I kind of -- my heart just -- it sunk. I don't even know if I have the -- I don't know if I can make it through this program. Really.

RUTH MARCUS, COLUMNIST, "WASHINGTON POST": Bill, keep it together. I'll help you along.

KRISTOL: Dashed hopes.

JONES: No defense, in other words. You agree with us?

KRISTOL: There's zero evidence of abuse.

CUPP: Edward Snowden isn't evidence of abuse?

KRISTOL: Edward Snowden is evidence of a guy who illegally stole a huge amount of documents. It's evidence that the NSA probably didn't have good internal -- as good internal security protocols as they should have.

But who's been abused? Look, we know what abuse looks like. We know what the IRS did to the Tea Party boosts (ph). More importantly -- well, more importantly, we know what the FBI did under Kennedy with Martin Luther King. We know what the CIA did under Kennedy and Johnson and Nixon. Who's been abused? Who's had his privacy compromised?

CUPP: Well, you have. Everyone has.

KRISTOL: Well, no one has used it. There's no evidence that any single person at the NSA has done anything.

MARCUS: I think you're all right and all wrong. And so let me explain why.

Bill's rights, there's not evidence that somebody has inappropriately at the NSA gone and looked at your cell-phone records and figure out -- figured out who you're calling all the time and who they are calling.

At the same time it's also true that there is this massive amount of data that they've collected. They are the ones internal to the NSA who decide whether they have reasonable suspicion to go and look at that data, and there aren't external controls on it. So that they have done is basically created their own problem.

We want, at least I want, and people like you -- foreheads, warheads, whatever that was --want people to be able to connect the dots. That's what we were all tearing our hair about -- out about after 9/11, but we wanted them to do it with some degree of control and supervision.

KRISTOL: Well, wait a second. They have to go to a court.

CUPP: They can't be a little constitutional.

KRISTOL: They have to go through a court -- they have to go to a court to look at the content of people's communications.

MARCUS: They don't. They don't.

KRISTOL: So why does somebody from a police department have cruisers going around and noticing that, gee, there are an awful lot of unruly looking kids on this street at 10 p.m. And maybe we need to send an extra cruiser there. That's different from pulling someone over and searching them.

MARCUS: If I looked at your cell phone, couldn't I find out an awful lot -- and didn't look at the content of your e-mails, but just look at who you --

KRISTOL: And don't put the cell phone number together with the person?

MARCUS: No. But if I looked at your cell phone and looked at the numbers that you called and the numbers that you texted, and the e- mail addresses of the people that you e-mailed, wouldn't I get a lot of information about you?

KRISTOL: Yes, but then you have to go to a court to get to apply that information to me.

MARCUS: That's the question. No.

KRISTOL: It's meta -- it's metadata.

MARCUS: That's not correct. What you need to -- in order to -- in order to -- the president assured us, and he was correct, that no one is listening in on Americans' phone calls. But what he can't assure us -- CUPP: He also denied that this program existed before evidence of it came out and proved he was lying.

MARCUS: Well -- Clapper denied that it existed.

CUPP: The administration.

MARCUS: That was a big problem. So there's three -- there's three different levels. No one is listening in on the content of phone calls.

CUPP: Right.

MARCUS: This massive information is being collected. It can't be queried without a reasonable suspicion, but the people who determine right now whether that's a reasonable suspicion are 22 people at the NSA. What this report says --

KRISTOL: And a secret court.

MARCUS: No, not even a secret court; an NSA court. What this report says should happen is that, in order to query that database -- not to look at the content but to figure out who your web is of people that you're talking to, that that, like other things, should go to -- you're going to call it a secret court. I'm going to call it a responsible outside body, which is a lot better than having the government spies deciding for themselves what the rule is.

JONES: Hold on one second.

KRISTOL: Twenty-two -- you think -- let's just talk about this a minute. You think I don't have a strong view on whether they could go to a court. Querying the database is still not querying the individual. It's querying the number and seeing what the pattern of connections of a number that they're worried about is.

MARCUS: You know -- they know who that is.

KRISTOL: You think 22 people are going to sit around, 22 senior intelligence officials, military officials, people who work in places like the NSA, and elsewhere, are going to sit around and say -- 22 of them together are going to say, "Let's inappropriately go after this person?"

MARCUS: It's not a question of inappropriate. It's just a question --

KRISTOL: So what are you worried about?

MARCUS: Here's what I'm worried about. Just as when -- just as I liked to have the magistrate approve a search warrant, because I'm not that I don't --

KRISTOL: This is not the equivalent of a search warrant. Absolutely not. MARCUS: It is the equivalent. And that's what this group says it is. Just as I like to have the magistrate approve a search warrant, I would like to have an outside body, the court or a subset of the court, look at these requests to query the metadata and figure it out.

There's another question about who should hold this data, whether it should be held by the telephone companies or whether it should be held by the government. I don't see why the president doesn't leap on this piece of the report and say, excellent, good idea. Let's figure out how to move this data out of the government, perhaps, whether the phone companies could have it.

JONES: Let me just --

MARCUS: But even more, let's have some judicial supervision.

JONES: You know, here's what --

MARCUS: And you should be comfortable with that, Van.

JONES: Let me say -- let me say what I'm uncomfortable with. Here's what's so strange to me. To hear liberals now -- I remember -- I'm an expert -- I'm an expert -- I'm a lay historian. I can go all the way back to the Bush administration in my own mind. That's a long time in Twitter-land.

And I remember we were absolutely -- this is wrong what the administration is doing, what Bush is doing, lying and spying and all this sort of stuff. And I see now liberals like yourself, "Oh, well, this this -- this will be a little bit unconstitutional, but we'll have a secret court to overlook it, and it's all fine."

Why is it -- why is it not the case that once again liberals are flushing our principles down the toilet just to be in lockstep with this administration?

MARCUS: Well, I had the same principles during the Bush administration. I've always been a believer that you need to have aggressive spot -- aggressive intelligence-gathering, and you need --

CUPP: On every citizen of the country?

MARCUS: You need to have aggressive intelligence gathering to put together the kinds of dots that weren't put together before 9/11, and you need to make sure that there is outside supervision. These are Article 3 judges who are doing this. I think that should -- if -- if we hadn't lied about this programs, lied about its existence, hadn't failed to explain --

JONES: Go ahead.

CUPP: Oh, yes, we'd never know.

MARCUS: Hadn't failed to explain to people what it is that they're doing, that they're not listening in on your phone calls, that they're just looking at the numbers -- JONES: I'm going to go to Bill Kristol. But I think he's going to save me on this.

MARCUS: -- and outside groups, the public wouldn't be in this uproar about it.

JONES: That's an awful lot of "if's." And --

KRISTOL: To your point the public is not in an uproar about this.

MARCUS: They are. They don't --

KRISTOL: Oh, nonsense. They don't like it vaguely -- they say vaguely -- which is the way the public is. They're not going to like --

MARCUS: Van would be in an uproar.

KRISTOL: Van -- yes. No. I mean, a bunch of people in D.C. and a bunch of lawyers who think, "Oh, my God. If a judge doesn't approve everything, there's rampant illegality" are in an uproar.

JONES: But this is -- I'm just so shocked to hear this from you. You are no fan of big government. You've spent a big chunk of your career pointing out the way -- including recently, the way the government gets things wrong, from Obama care, et cetera, et cetera. Why is this the one exception where you think the government is going to get it all right and all perfect, you're not concerned at all about the Fourth Amendment of our Constitution?

KRISTOL: Look, I actually am concerned about the intelligence community in a lot of ways, like they get a lot of things wrong, and the way the NSA is dependent itself has been foolish and at times misleading. And they are, like all bureaucracies, they get into a hunker-down mode, and they justify spending ever more money and all that.

I'm worried, as a matter of intelligence, that we are focusing too much and depending too much probably on this metadata collection instead of on human intelligence. So I'm perfectly happy to criticize the NSA. I don't know that I know enough to really be intelligent about that one.

When I was in government 20 years ago I had my criticisms of the intelligence community; seeing a lot of it up close. I'm not, on the other hand, really terrified -- I'm not saying they couldn't tweak certain things, but I am not terrified as a true, practical matter that a bunch of people are sitting around the NSA, conspiring to abuse people's privacy here in the United States.

JONES: Well, there could be hackers.

CUPP: Well, let's hope it's not filled with a lot of Edward Snowdens. I mean, there's -- we have an example. We only know about this, because we have an example of someone in the NSA sharing all of this information. Why is that not a likely possibility in the future? MARCUS: Well, there's two levels of concern. One is whether people are using it inappropriately, doing the kinds of things that you talked about that the FBI did and CIA did in years past.

The other is whether they're using it without adequate supervision. You raised the Fourth Amendment. The Fourth Amendment says warrants shall not issue. You can't have unreasonable searches and seizures. It's up to both us as individuals and a society, and to the courts to decide what's reasonable and what's not. And it's always a balance.

MARCUS: And a judge didn't -- he did -- he said it was partly --

CUPP: He said it was unconstitutional.

MARCUS: He said it was partly unconstitutional.

CUPP: We'll see -- we'll see where that gets in higher courts.

Containing the NSA, though, is not the only challenge facing President Obama in his quest to save his second term. Next I'll ask our guests why the president is bringing in a guy who's crippling the chances for bipartisanship before he even starts his job. You won't believe what he's calling Republicans. Pretty tasteless.


CUPP: Welcome back. In the CROSSFIRE tonight, Ruth Marcus and Bill Kristol.

An hour and a half ago the Senate finally approved the budget deal that will prevent another government shutdown, but before President Obama celebrates bipartisanship, apparently his cleanup operation needs a cleanup operation.

Today, his incoming fixer in chief, John Podesta, apologized for a truly horrific comment he made in Politico, where he compared House Republicans to, quote, "a cult worthy of Jonestown." So much for bipartisanship.

Ruth, LBJ -- let's go back in time -- LBJ famously lost Walter Cronkite over Vietnam. Apparently, the president has lost Barbara Walters over Obama care. Take a look.


BARBARA WALTERS, ABC NEWS: We thought that he was going to be -- I shouldn't say this at Christmas time, but the next messiah. And the whole Obama care or whatever you want to call the formidable -- Affordable Health Act, just hasn't worked for him. And he stumbled around on it. And people feel very disappointed, because they expected more.


CUPP: Do people feel very disappointed? Are Democrats disappointed? MARCUS: I'm disappointed. The polls suggest that other people are disappointed. And look, they have every reason to be. The president says they have reason to be. The roll-out of Obama care was botched. And it's not done yet. It's not fixed yet; there's a lot of fixing left to do.

That doesn't mean that the law isn't going to ultimately work. It's a good idea. It will help make health care available and affordable to a lot of people who wouldn't have had it earlier, and that's a good thing.

CUPP: But the president's down in the polls on the economy, a well. It's not just the Web site.

MARCUS: When you lose the confidence of the American people because you made obviously untrue -- untrue on their face promises to them, like if you like your health care, you can keep it, you can't fix the health care system without disrupting the health-care system, you're going to lose some credibility.

He should have done two things better. He should have planned the roll-out better.

CUPP: Yes.

MARCUS: And made sure it wasn't a debacle, number one.

CUPP: Yes.

MARCUS: And he should have figured out how to sell it without making people feel like they were sold a bill of goods.

JONES: Fair enough, but to you, Mr. Kristol, what's interesting is that he's now rebounding, he's now above water on the character question, above water on the honesty question, for the first time since this debacle.

And more importantly, somebody mentioned the economy -- 57 percent of Americans actually are with the president, saying they want government action to deal with income and equality. They want government action to raise the minimum wage, even Republicans.

Aren't you concerned that Republicans are still doing this victory dance about Obamacare while the president is coming back, and actually the issue set is moving us on the economy?

KRISTOL: This reminds me of conversations I had from the Bush White House in late 2005 -- we're coming back. That Katrina thing, the war in Iraq, the nomination of what's her name, Harriet Miers, that's all history. We're bouncing back.

I don't think anyone should do any victory lapse. I think Republicans need to keep explaining what's wrong. It doesn't take much explaining, what's wrong with Obamacare, proposing both escapes in the short term and, of course, their own reform proposal which I think Paul Ryan will lay out in January. But, you know, John Podesta, I have never him for years, coming back in the White House, it makes me a little sad (ph), it makes me sad watching you agree with Van earlier in the show.

CUPP: Why?

KRISTOL: Well, because he was chief of staff to Bill Clinton, I mean, he was a serious guy. He was a very able chief of staff and now coming back as kind of deputy assistant of Valerie Jarrett.

CUPP: Something.


CUPP: It's unfortunate. I feel bad for John.

MARCUS: I don't think you need to feel bad for him, no.

JONES: Let me play a few things in his defense after you do.

MARCUS: Well, you go first. You're the host.

JONES: First of all, that offhand comment got published now, but he said that months ago.

CUPP: Well, that makes it better.

JONES: I think it does make a little bit better.

CUPP: No, it doesn't. A terrible thing to say.

JONES: A little bit of context, that's all I'm saying.

And the other thing is, you know, when you have somebody with your stature coming in, he was there for Bill Clinton under real fire, during the impeachment, et cetera, I think having somebody come in with a steady hand is a good thing and it's exactly what you guys have been saying he should do. Now, he's doing it.

KRISTOL: If it pops the bubble around the president, it will be a good thing for the country. Oh, we'll be because we're stuck with this president for three more years. I don't want him to totally ruin the health care system, and I hope we could maybe adjust with reality, and more broadly, foreign policy. Maybe John Podesta, I don't think that's really his brief. But maybe he could bring in some people to our Clinton administration who remember that we should stand up to our enemies and not just --

CUPP: Oh, indeed. Ruth --


KRISTOL: I have to give Van a little, you know.

CUPP: Obamaland is planning the president's library. I know what the first term room is going to look like. You'll see Osama bin Laden here, and Obamacare here.

Tell me what do you think the second term room looks like? Because it seems pretty empty in my mind.

MARCUS: It's very sad and quiet, and it has Jeff Zients sitting (INAUDIBLE) --


MARCUS: -- still writing code.


MARCUS: What is the second term room of every presidential library look like, of presidents who have second terms? They are not traditionally successful moments. I haven't been to either the Clinton Library or the Bush Library, but there's a moment from the second term that he doesn't want to remember.

KRISTOL: The Nixon library has a good second term. And those of us who still think nostalgically about the old man, you know? I think Obama can aspire to a Nixonian level of the second term.

MARCUS: The serious answer to the question is -- get Obamacare better launched. Number two, work really, really hard on the one thing that might be legislatively possible other than not continuing to shoot ourselves in the head, which is immigration reform. John Boehner has just hired somebody who has some sanity about immigration reform. That's a good sign, let's move forward on that.

And the thing that John Podesta brings, nobody has ever accused him of being nonpartisan, he's understanding how to make the levers of government, particularly the executive branch work, drive forward relentless on climate change and regulations, the things that in a president's control. That's what did he fantastically in the Clinton White House. That's what he can most help the president here.

JONES: Well, I agree with that. And I think it is very interesting. You look at what he has left to do what he can -- stuff on immigration. But I think sometimes we miss the fact this Republican Party has some real problems.

And I want to hear from you on this. With the sequester, we thought we were going to be in the situation, where because the defense cuts were so catastrophic, the right wing would rush to the table. It turns out you got a big chunk of the right that agrees with me that we're spending too much on defense.

Aren't you about to lose the defense leg of your hold of Republican coalition? I mean, you're Mr. Defense Hawk.

KRISTOL: More than two-thirds of House Republicans voted for this deal, which proves (INAUDIBLE), that they're not totally obsessed with sequester. They did care about defense and a few other things. A lot of the Senate Republicans voted against it for silly reasons. They knew it was going to pass and it was a free vote for them. So, I actually say, if anything I mean, I think defense is still being cut too much, but that will be a debate Republicans will have. Republicans are not, I agree, in perfect shape as a party. But honestly, I'd say, if you think where they were a year ago, totally reeling after the Romney defeat, giving in on -- as they should have -- on tax hikes for the rich. But in total disarray on the issues.

CUPP: Or its relaunch, Bill.

KRISTOL: The kinds of candidates that Republicans have in 2014 I think in a lot of Senate races and House races. They're better off than I expected.

CUPP: Ruth, this last budget deal in part referencing got done largely without Obama. Should he maybe just step aside and let folks form coalitions on their own?

JONES: You wish.

MARCUS: Well, he will say --

CUPP: I think he wishes.

MARCUS: That what he will say and has said, that when he gets involved, if he endorses something that makes every Republican in Congress and elsewhere just scurry away from it. And, look, there's some truth to that.


CUPP: How is he leading? Where is he leading?

MARCUS: Well, he can lead in the ways that I said before. And he can lead in making the argument. I thought he made a pretty good, not perfect but pretty good speech on income inequality and the importance of addressing that. He can lead in talking about the importance of making investments in education and infrastructure.

There's all sorts of things --

KRISTOL: I've got an idea of where he could lead. He should defend the hard working professionals at the National Security Agency and elsewhere in the intelligence community, who are being maligned by Tea Party crowd (ph), by the hosts of CROSSFIRE.


CUPP: I think he's done a good job defending the NSA, so far.

JONES: He's done a good job.

I'll tell you an area where he is leading and should continue to lead is on the question of social policy, inclusion and everybody counting in America. In fact, the president took a stand -- a tough stand -- yesterday when he announced the U.S. delegation to the Olympics and it includes in a slap to Putin some prominent openly gay athletes. We're going to have final questions about that from both of you when we get back.

Now, we also want you at home to weigh in on today's "Fireback" question. In light of the terrible stuff that Russia is doing to gay folks, do you think the U.S. should boycott the Olympics in Russia? Tweet yes or no using #crossfire. We're going to have the results when we get back after the break.


JONES: We're back with Ruth Marcus and Bill Kristol.

Now, it's time for the final question.

You go, first.

CUPP: Ruth, Van talked about it earlier. The president announced the delegation to the Russia Olympics in Sochi and said it will include openly gay athletes. This is in defiance of Russia's recent crackdown on homosexuality.

Now, I support same sex marriage. I'm a gay rights advocate from the right. And clearly the president is delivering a strong message to Russia in this. But aren't there stronger messages we need to deliver to Russia on say, Syria and Iran?

MARCUS: Yes. But the Olympics -- maybe the Olympics is a place to deliver a message to brush the invasion of Afghanistan but I love this message. I think this is a great in-your-face message. He is withholding presidential excellence, vice presidential excellence, first lady excellence.

And what is he doing? He is sending them the gays and the lesbians. I think -- I just thought it was brilliant.

CUPP: Me, too.

JONES: Good.

And I'm super excited about it as well, and I think it is interesting that you can now have a president of the United States slap down Putin on the issue of gay rights. That wouldn't have been possible ten years ago and now it is. It seems to me Republicans are nowhere to be seen on this fight. Does it worry that you the GOP is not --

CUPP: Hey, I'm right here.

JONES: We got one --

KRISTOL: I like you guys -- wow, that was really bold. He is really showing Putin who is boss. I'm sure Putin is sitting there thinking, boy, I've just been humiliated by the president. And he sends a couple of gay athletes over the Olympics. That's going to cost me big problems.

Meanwhile, we're capitulating to him on everything important. The reset has been --

MARCUS: But what do you want to do, though, Bill?

KRISTOL: The reset has been a total failure. But this is typical of Obama and liberals more broadly.

Don't confront any of the serious issues. Then you feel good about yourself, hey, I really showed him with Billy Jean King.

MARCUS: You want them (ph) not to go to the Olympics?

KRISTOL: No, I don't -- send whoever he wants. I don't care if Billy Jean King and Boitano, heads of the delegation. I just don't think we should pretend this is a great moment for Obama, for America, or for gay rights.

MARCUS: Isn't it better to have them than some other group? I think it's a little bit of a gesture --


KRISTOL: A lot of other people have been treated badly in Russia. Maybe you send a journalist.

MARCUS: We could do that, too.

CUPP: OK, all good points.

Thanks to Ruth Marcus and Bill Kristol for joining us.

Go to our Facebook or Twitter to weigh in on our "Fireback" question.

Do you think the U.S. should boycott the Olympics in Russia? Right now, 20 percent of you say yes, 80 percent say no.

JONES: The debate will continue online at, as well as on Facebook and Twitter.

From the left, I'm Van Jones.

CUPP: From the right, I'm S.E. Cupp.

Join us tomorrow for another edition of CROSSFIRE.

"ERIN BURNETT OUTFRONT" starts right now.