Maybe the NSA Should Run Healthcare.gov

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David Plotz: Hello and welcome to the Slate Political Gabfest for November 1, 2013, the “Maybe the NSA Should Run Healthcare.gov Edition.” I’m David Plotz, the editor of Slate. John Dickerson, Slate’s chief political correspondent, always on time, always his best self, is here in the DC studio with me. Hello John.

John Dickerson: Hello, David.

David Plotz: Joining us from New Haven is Slate senior editor Emily Bazelon. Hello, Emily.

Emily Bazelon: Hello. Am I always my best self? No, definitely not.

David Plotz: You’re often your best self. You were your best self in the thing that we saw this week about you. Gabfest listener, Maura Pierce—longtime friend of the Gabfest, Maura Pearce, stumbled across a 1996 Woman on the Street CSPAN interview with Emily this week. And she sent it to us, and we've posted it.

Emily Bazelon: And, boy, do I look 12 years old.

John Dickerson: In which both you and Paul had a pretty good working knowledge of the Pentagon Papers, and why they were important.

John Dickerson: I mean, to be just stopped on the street and asked about the Pentagon Papers.

Emily Bazelon: It could have been worse.

David Plotz: So, Emily and her fiancé—then fiancé, now husband--were stopped on the Mall and asked about the Pentagon Papers, and they showed separate interviews with them. And you were your best self. You were very charming -

Emily Bazelon: I was a little loopy, though. You have to say that—in the beginning, in particular.

David Plotz: Not at all. Did you have a law degree at that point?

Emily Bazelon: No. Not at all. No, I had not started law school.

David Plotz: For not having a law degree, you were very together. You were very calm, poised, spoke in complete sentences. You hair looked great.

Emily Bazelon: My hair is hilarious. It’s in a pompadour for an engagement party that Paul remembers—and my grandmother was throwing for us. Everyone can go amuse themselves if they really want to.

David Plotz: It was great. You should definitely watch it. We will post the link to it.

This week on your Political Gabfest: The Healthcare.com fiasco continues as the Secretary of HHS is flayed, mildly flayed, before Congress, and President Obama tries to recover from a campaign lie, or fib, or perhaps truth about whether you can keep your insurance in the age of Obamacare—but if you like your insurance, can you actually keep it?

Then, our second topic: The NSA has been spying on German Chancellor Angela Merkel for a decade, more than a decade; also the Cardinals at Vatican City. Also, apparently, most of the people of France and Spain. And who knows who else? We will talk about whether the NSA is finally in deep trouble for its excessive surveillance, and whether spy world is going to be reformed after all.

Then, is it ever okay for a department store to practice racial profiling? Plus, we will have Cocktail Chatter, of course. And before we get started, an exciting—even a thrilling announcement.

David Plotz: Yes, the Gabfest is coming to Brooklyn.

Emily Bazelon: Oh, right. Oh, of course; I forgot.

David Plotz: The borough of my ancestry. November 19, our very first Brooklyn show will be at the Bell House. The tickets are now available at slate.com/nygabfest. I think the show is at eight. There’s a cocktail party before. Tickets will go fast for the cocktail party, and maybe they’ll go fast for the show. So, you might want to get there quickly. Slate.com/nygabfest.

We’re going to focus—it’s the week of the Kennedy Assassination that week. And we decided we’re going to do a show where we’re going to focus on John F. Kennedy, the assassination, Kennedy’s legacy. So, please come; can’t wait to see you in Brooklyn.

The ongoing fiasco of Healthcare.gov continued and metastasized this week, as the president vowed to have the healthcare marketplace working by the end of November, and touted the likely benefits of the plan. The administration was being besieged in several directions. Kathleen Sebelius, the Secretary of HHS, and other top officials were summoned before Congress to self-flagellate, to do penance about how they messed up the website.

Americans on certain plans began receiving cancellation notices, despite President Obama’s promise during the campaign, was it, John, or later—during the rollout?

John Dickerson: Well, during the rollout and after.

David Plotz: During the rollout he promised—

Emily Bazelon: Repeatedly.

David Plotz: He promised repeatedly that if you like your plan you can keep it, but now plans are being canceled. The administration, will they have an answer for that? We’ll talk about their answer in a minute.

Also, the site crashed again this weekend, by the way—although it seems to be back up, sort of.

David Plotz: Just kind of. And, John, I loved yesterday—you did a great Gabfest extra with David Auerbach, a software engineer, who has been writing for us about this. And it was so fascinating to learn all about his sense about what the serious bugs were and weren’t, and where the problems were. I strongly commend anyone to listen to that.

John Dickerson: Yeah. He was just great. He was really great.

David Plotz: So, let’s talk about this issue of people’s plans getting canceled. So, the president had said, if you like your plan, you can keep it. Now, it appears that people are getting cancellation notices, Emily, from their insurers. Mostly these are people who are not on employee plans; are also not on Medicaid or Medicare. They’re getting cancellation notices from their insurers saying that, because of Obamacare we’re cancelling your plan; meaning you’re going to have to go sign up for a new individual plan in the healthcare exchanges.

Of course, you’re unable to do that right now. The Republicans and, in fact, many Democrats are saying, “Hey, Obama, you promised that we could keep our plans. Now we can’t. What’s the deal?”

Do you think the president has a legitimate response here, Emily?

Emily Bazelon: Well, I mean, their response is that he was talking about people who are on employer-based plans. And what we’re now focusing on are the five percent people who are on individual plans. And the reason they can’t keep their individual plans is that they’re bad plans, according to the administration, that don’t provide enough coverage and are too expensive.

And so under the new rules of Obamacare, they will be eligible for better coverage. Okay, but the problem is there's this huge time lag disaster here, right, where people are getting the cancellation notices now, but the new plans won’t kick in for a couple months. And so if something bad happens to them in the meantime, they feel vulnerable. And, also, just the storytelling and theater of this is terrible, because instead of people feeling like, “Oh good, I’m happily switched over to this better plan. Who needs this old bad pair of shoes I was wearing?” it’s like they’re being left barefoot in the desert with all this worry that this website is never going to work, and the whole thing just seems so wobbly that I think that is focusing a lot of attention on these people with individual plans.

And if I was them, I would also feel worried and upset.

David Plotz: John, is Emily right that the president really doesn’t have a good comeback here?

John Dickerson: He has an okay comeback, absent the context. So, the reason he said for four years that if you have your plan it won’t change is that he was trying to sell people on what was going to be a disruptive change to the healthcare market. And the biggest political challenge he had was that people who had existing plans through their employers, the 80% of the population, were terrified that whatever he was going to was going to destroy what they had and what they liked.

So, he was promising a kind of controlled chaos. He was promising to change the status quo, which was terrible. People even who had insurance were getting bankruptcies as a result of going into the hospital and having more costs that they were expecting. And he was saying, “I’m going to change dramatically the healthcare system, but only in this very narrow and controlled way.” And that’s what this promise was all about.

It was the central promise, because it was basically saying, "I will do something but it will be a controlled business." And in that context, then, now when you say, well, for this five percent of the population, for these 11 million or so people, it’s not really true that they’re going to be able to keep their doctor, but what they’re going to get is going to be better. And even though in some cases what they get isn’t necessarily going to be better, what starts to happen is, you get into the kind of dissembling that, compared to the original way he talked about this, the ironclad, nothing's going to change, there’s obviously a disconnect there.

And since what he’s in the middle of—and, in some ways, always been a part of the Affordable Healthcare Act—has been a credibility question. Are the promises he’s making going to actually turn to be true? And as the website has its issues, which is, in a sense, a credibility problem—we said it was going to work like this, and now it’s not working like that, it adds to this feeling that the law is not as it was advertised. And, therefore, it reignites the initial worry among people who are not even affected by the Affordable Care Act directly, and that’s everybody who has regular insurance, thinking, “Geez, I was promised all these things about how it wasn’t going to screw up my healthcare. Now these promises are not turning out to be true.” And that just makes people worry.

David Plotz: Someone made this point—I wrote it down in my notes, but I didn’t write down who made it. So, whoever made it, good job.

The healthcare narrative for the past—really, for the past 20 years, practically, has been a story in which some poor person—the exemplar story has been about some poor person, a sick person cannot get insurance because of horrible HMOs, because of laws about preexisting conditions, whatever, and getting screwed. Now, we have—that was a narrative that really favored the Democratic story on healthcare reform.

Emily Bazelon: And people were going bankrupt and suffering mightily.

David Plotz: And going bankrupt and suffering. And the narrative has been flipped, which is, because of this overregulation, because of the octopus of Obamacare, which is putting its horrible, greasy tentacles into every aspect of American insurance life, it’s poor innocent do-gooding citizens who have had insurance are getting crushed by this horror in Washington, by Sebelius and Obama. And that’s in a narrative, obviously, which aligns with what the Republicans have been saying.

Emily Bazelon: I mean, it’s not really a true narrative in the long run, if Obamacare works the way it’s supposed to. Because what happens to people who are on plans with huge copayments and bad coverage is, they get better plans. And other people’s insurance premiums go up, because the insurance companies can’t reject sick people anymore, and you’re spreading risk. And so it is true that young, healthy people will be paying somewhat more, but that’s a good thing overall.

It’s just we haven’t seen any of that actually materialize yet.

John Dickerson: But I think the most controlling story in healthcare is still the one that affects the people, the largest number of people, which is all the people in the employer-based system. And those people are worried that what they have now, as imperfect as it may be, will get worse.

Emily Bazelon: But, John, we don’t have any real reason to feel that way rationally—right? I understand the anxiety, but it’s not like something is happening to the employer-based healthcare plans that would make us rationally expect that, right?

John Dickerson: I mean, what killed the Clinton’s attempt to do this—and then what made Obama’s attempt to do it never really popular, and always the weight and the problem he always had, and the reason he never really had a moment where it was super popular—except in the very beginnings where people said they want the system to change, but then it was so unspecific that people were for that. But the minute it got specific, people worried. The whole problem was always that the huge group of people who were in the employer-based system said, “Once you start monkeying with it over here, to help these people who are not being covered because of preexisting conditions, who are getting into plans where they’re getting screwed—once you start helping them you’re going to mess with the whole system and that’s going to slop over and affect me.”

And that’s always been the political thing the president's been fighting against. And he’s never really fixed that because it’s—how do you? I mean, it’s basically the fear of change. The only way you can overcome the fear of change is if this website had worked and all these people had gotten better plans. And then the whole healthcare system had kind of settled out, and it had been no problem. And so all of the fear-mongering, or what Republicans would say is accurate prediction of what would happen—there would be some resolution. You'd get some proof to the fears and the questions of the last four years.

But we still haven’t gotten that. And so the people who were fearful in the first place are getting evidence that maybe their fears were founded on something.

David Plotz: What I find so bizarre about all of this is that the Republican criticisms of what’s happening are 100 percent legitimate. They are absolutely vindicated in the incompetence of the rollout. And yet there is so little willingness to offer any ideas, any alternatives. Because if you think about what Obamacare consists of, it consists of things which Republicans now all support.

For example, the ban on preexisting conditions, being able to deny people insurance, that will never come back. You cannot bring that back. People with preexisting conditions are going to be allowed to get insurance.

Covering things like pregnancy and mental health, those are things which are going to be covered in the future. You cannot get rid of them. Basically, what it comes down to is, how much are we going to subsidize the insurance for the people who are not super poor but moderately poor? That’s the only thing that really is at issue now.

Emily Bazelon: Well, but I feel like that’s not totally true, because, also, what’s at issue is whether this whole notion of an exchange, which is the private market operating in this government-constructed universe, whether that’s going to succeed or not. And it seems like the evidence for some of the states that are actually having functional websites, and the evidence from Massachusetts is that it can work perfectly fine. And then we will see these benefits.

But, nationally speaking, we don’t have anything to show for that yet. And so that’s the thing that seems to me, rationally, would be the problem that people could legitimately be fearing.

David Plotz: I don’t really understand that, but maybe that’s because I didn’t understand what I just said.

Emily Bazelon: No, this whole problem we were talking about last week, which I know you understand, that the only way for the exchange market to function is if lots of people sign up, some of them healthy who are lower cost and spread risk.

Emily Bazelon: I mean, it seems like that’s still a question mark. If we see that working, then this basically market-oriented Heritage Foundation dreamed-up solution to the problem of people with moderate incomes having no health insurance, then we’ll know that can work. But until we see that, that is this big question that is unresolved. Right? John, am I correct in—

John Dickerson: Yeah, yeah. That’s the policy danger for the Obama administration at the heart of the healthcare website not working, is not only do you—under what they had hoped the healthcare website would be there. People would be able to comparison shop. They would get these letters from their insurers saying you’re losing your insurance. And they’d say, “Well that doesn’t matter because I have a choice of four plans, and they’re better plans, and I’m really happy because I’ve either signed up for a new plan, or I am about to sign up for a new plan. And so the fact that my old clunky plan is getting canceled doesn’t bother me.”

Well, the healthcare website has denied supporters of the president’s plan those stories. But then the real worry is the policy impact of the fact that people aren’t signing up.

Now, they say in Massachusetts, people signed up late. The question is whether a sufficient number of people can sign up for non-Medicaid coverage, people who are young enough, to work these pools out in the various regions in the country. And we won’t know that until the middle of next year, probably.

Emily Bazelon: Right. No, it’s still possible these could all turn out to be short term disasters, but not long term killers of the legislation, right?

John Dickerson: Yeah. The only thing I would say is that the administration was so anxious to get these younger people signed up from the second they could. And that it was going to be a hard proposition to begin with, to get the young invincibles to sign up.

And so the fact that a month has been lost—and in the end maybe two months has been lost—we do have time, but—

David Plotz: Maybe they should launch a campaign where they go out and cause crippling injury to lots of young, uninsured people that will be then highly publicized. That could be like a full employment government program where you send people out.

John Dickerson: Where you just go around, and just—

David Plotz: Run them over.

Emily Bazelon: Just hit them with cars. That would be the easiest method.

David Plotz: Hit them with cars. Yeah. That would be awesome. That’s a good idea.

I want to do one more question about the politics of this before we wrap it up—which is, just a couple of weeks ago, we were having this conversation about the catastrophic fate that the Republican Party seemed to have consigned itself to.

I cannot recall in my life a political situation turning around as rapidly, and as comprehensively, and as legitimately, for legitimate reasons, as this situation has. John, can you think of an example? And is there any reason for the president to hope, “Oh, this is going to subside, and everything will be back, and people will remember how outrageously the Republicans behaved in September.”

John Dickerson: What was Clinton’s standing right before everybody learned about Monica?

Emily Bazelon: Yeah. I was trying to remember whether the economy was doing well enough, and the deficit was down, and it all seemed hunky-dory, and then—poof.

David Plotz: Yeah, it was okay. Things were okay there.

John Dickerson: And in the end, Monica was not a fatal strike against the president. And so President Obama has seen—his approval ratings in the Wall Street Journal poll are as low as they’ve been in his presidency. And his personal approval ratings, which used to be good, even though his job performance numbers were bad, his personal performance numbers are now upside down for the first time, which just means more people don’t like him than do like him.

I think what’s happened, David, is you have two things in decline. One is the Republican Party. And the other is the president. The president is in a slower rate of decline, but he’s gone through a tiny little burst in the last week. But the Republican Party’s decline still continues. And they still have all of the problems.

Having said that, two things about this are good for Republicans. One, it takes the focus off of them. And, two, on the Obamacare front, it allows some to say, “Well, you see? This is why we were really interested in Obamacare, and why we wanted to stop it, because it has all these inherent flaws.” And that allows them to both feel validated, but, also, more broadly, it allows them to say, “We’re not only sort of soothsayers, and we could predict all this in the future, but all of our 48 votes and everything, they weren’t wasted effort, because it’s been this bad.”

Now, whether that actually is the case doesn’t really matter. It gives them an argument that they can sustain, whereas, before, people might have been like, “Your obsession with healthcare, over the Obamacare, years after it had passed, was kind of proof of the fact that you have no ideas, and you’re kind of off on these crusades, and not doing anything that affects us and has anything to do with our lives.”

David Plotz: Now, for today’s breakthrough: How positive are you that the memories inside your head are real? Most of us think that are memories are full proof but Professor Elizabeth Loftus knows better. Her research has found that memories are easily manipulated, and much of what we think we remember may actually be the result of suggestion.

To read about her and uncover more ground-breaking innovations by the University of California, visit slate.com/breakthroughs.

I don’t know if you remember—Will Saletan did a fantastic series for us about Elizabeth Loftus.

Emily Bazelon: I was just going to say that she is such a fascinating researcher, and everyone should go read that wonderful piece that Will wrote.

David Plotz: Yeah. And I now know that she’s a UC professor. That’s great.

I’m not confident at all of any of my memories. Not even of what happened five minutes ago, really.

Emily Bazelon: Gracious; how stressful.

David Plotz: What’s your earliest memory? Do you think you have an earliest legitimate memory? Do you think it’s all planted?

John Dickerson: I don’t. But I think anything that is narratively coherent is planted. I think I have memories of kind of images, snatches from periods when I was a little kid. But I have such a bad memory from all of those concussions in high school that I barely know your name—or my own, for that matter. It’s really—it’s tragic.

David Plotz: What’s your earliest legitimate memory, Emily?

Emily Bazelon: I have the idea that I remember when Nixon resigned, that I remember the red carpet that he walked on, or some red velvet something in the room. But I’ve never looked to see if that is actually possible that I remember it—that there was red velvet or red something, or whether I just have been told about it or saw it later.

David Plotz: I definitely remember Nixon’s resignation. I remember that. But I’m a year older than you are, I think.

David Plotz: So, that’s four. You probably remember that?

John Dickerson: I don’t. No. I remember Carter’s inauguration. But I don’t remember Nixon’s resignation.

David Plotz: I don’t think anyone remembers Jimmy Carter’s inauguration.

David Plotz: You’re the only person.

Emily Bazelon: Carter’s inauguration is years later, also.

John Dickerson: Well, the reason I remember is we had a—Mom, for work, had a Betamax to tape television, which, at the time, was like having a spaceship in your backyard.

Emily Bazelon: You better have an earlier memory than that, John, because you must have been seven or eight.

John Dickerson: Well, no, I’m not saying—no, no, no.

David Plotz: Can you let him tell his great story?

John Dickerson: I’m just saying that this is my first, I think, political memory. Anyway—and she taped the inauguration. Can you imagine the least useful thing to do? But it was like, “We can tape the television!” I mean, you were in that early period where that was such a crazy thing.

David Plotz: No, why would that be least—there’s nothing. First of all, there’ s only one channel.

Emily Bazelon: I still feel that way.

John Dickerson: I know. But inaugurations are really kind of—

Emily Bazelon: Dullsville.

John Dickerson: Yeah. They’re pretty dull. But I definitely remember that. And I think she had to work, so there was a bunch of, “Will it work when we set the dial?” which you had to set by turning the little wheel manually, the way you now do on an iPhone. But you had to like turn the little wheels and then you had to put some coal in the boiler. It was a really involved thing.

David Plotz: That was a great story. I like that.

Emily Bazelon: Why are we talking about this?

David Plotz: That was the best part of the show so far. All right; let’s move on.

John Dickerson: I think I still have those tapes.

John Dickerson: Yeah. They’re in the small little Betamax. It looks so cute and quaint.

David Plotz: Aw. Healthcare.gov had a bad week; the NSA had a worse one. Thanks to the latest Snowden revelations published in various newspapers around the world, it now appears that the NSA has been eavesdropping on friendly world leaders, including Angela Merkel of Germany, as well as the Cardinals who gather to elect the Pope. As well as sweeping up millions of French and Spanish phone calls and text messages. perhaps.

Emily Bazelon: Don’t you just feel like if you were halfway important and in Europe, and you weren’t being eavesdropped on, you should be mortally wounded at this point?

David Plotz: What I want to know is why Angela Merkel, and not somebody fun? I mean, I presume they’re also doing—

Emily Bazelon: Who’s fun?

David Plotz: Berlusconi. Wouldn’t you want to eavesdrop on Berlusconi?

Emily Bazelon: Oh right; Berlusconi.

John Dickerson: I’m sure they were eavesdropping on Berlusconi.

Emily Bazelon: Maybe they were listening to him, too.

David Plotz: Wouldn’t you love to catch Putin—

John Dickerson: Except the thing is, Berlusconi wouldn’t be doing anything useful in terms of the US intelligence, right? He’d be just be on the phone to teenage girls.

Emily Bazelon: There would be a lot more hot sex in the Berlusconi calls, though.

John Dickerson: That’s, well, that—

David Plotz: That would be so great to get those files—or Prince William.

John Dickerson: But, I mean, there’s a chance that Angela Merkel would be doing something useful , because she’s a very purposeful and useful person. I wonder if they did—they did, of course, have—I mean, I’m sure they had something on Berlusconi. And I wonder, what would happen if what you got was illegal? I guess you would just hold onto it, and use it as leverage.

David Plotz: What do you mean? If you got him—

John Dickerson: Saying—

David Plotz: Talking and having phone sex with 15 year old girls?

John Dickerson: Working out his prostitution ring for 15-year-old—yeah.

David Plotz: It would be like the usual.

John Dickerson: Right. But, in a way, you couldn’t wring anything out of him, really, other than some good first-press olive oil or anything. I mean, because he wouldn’t be a useful—

David Plotz: Right. Also, it wouldn’t have been actually a revelation to anyone that he was running a prostitution ring with 15-year-old girls.

John Dickerson: Right. So, maybe it wouldn’t deem leverage. Yeah.

Emily Bazelon: How about—also, it just seems like this whole program was on autopilot, and its purpose is lost in the midst. We were just listening.

David Plotz: Right. Well, let’s talk about that. So, let me just finish the introduction, so that we have—the president now appears to be telling foreign leaders that he didn’t know about this until recently. There is absolute fury in Europe over this surveillance—although, some of it is of the Casablanca—shocked that there’s gambling in this establishment going on.

But there does appear to be genuine rage among some Europeans; maybe not that it’s going on, but that it’s going on so expansively , so easily, so thoughtlessly, so purposelessly, almost. And you even have Dianne Feinstein, a Democratic senator who has been very, very supportive—

Emily Bazelon: Who is usually a huge apologist for all of our intelligence gathering.

David Plotz: And she’s angry about the idea that we’re tapping allies.

John Dickerson: Well, see, this is what—it would be fun to be able to strip away how much of this is BS. I mean, is she angry that we’re tapping—I mean, I’m sure she’s legitimately concerned. But, also ,the fact that she didn’t know about this. She said, in one account I read, didn’t know about this for a decade—which means she could equally be angry with the fact that basically she’s being totally kept in the dark, not there’s the underlying crime—

Emily Bazelon: Even though she’s supposed to be in charge of the Senate Intelligence Committee.

John Dickerson: Right. And what takes me to is back to our old discussions, where if you were sympathetic to the administration, or looking for some kind of clarity in terms of where the lines were being drawn, and so forth and so on, the Intelligence Committee was one way in which there was supposed to be some oversight for the NSA.

And that oversight is based on the Intelligence Committee actually knowing what’s going on. And so this, it seems to me the most—one of the damning things is that if Feinstein didn’t know about it - it was a necessary requirement of all her previous oversight that she knew what was going on. So, maybe she didn’t know really what was going on about a lot of those other things, either. And so the oversight was—I mean, we always knew the oversight wasn’t that great. But, this suggests oversight in general is even less good than we thought.

David Plotz: Right. Well, this is where—this is why I’m in a snit about all of this, which is that I don’t have any particular problem with bugging Angela Merkel or even bugging the Vatican. I mean, it seems like as stupid thing to do. It seems like it’s a tremendous waste of resources. But as a matter of moral principle, I don’t think we should be forbidden from spying on your allies as you see fit.

What drives me crazy—and I think why people like me who traditionally are sort of pro-surveillance and don’t mind it as much are so angry—is that it's premised on the idea that there are checks, balances, there are people paying attention to it, that the NSA is telling the truth—that when they talk to Congress, they tell the truth—that they reveal what they’re doing to the president, to his staffers. And that the people who do have to make the hard decisions about this actually have the knowledge to make the hard decisions, that they know what’s going on.

And the fact that now we have a prominent senator saying she didn’t know, you have Congress, members of the House Intelligence Committee saying they didn’t know these things, you have lots of evidence that the NSA kind of lies or shades the truth when it testifies—all is a very strong push to me to say, "I am not going to trust a single thing these people say ever again. If they want to get more surveillance, they are going to have to come publicly testify, say exactly what they’re doing—because there’s no reason to trust them anymore."

Emily Bazelon: Yeah. And we’ve been heading down this path for months, ever since the Snowden revelation started—and, indeed, before then. And it seems like the indications are, in the post-9/11 world in which we all got worried and were willing to do basically—give up anything, any civil liberty in order to feel safer, we created—or recreated—a version of the kind of government spymaster monster that then becomes incredibly difficult to tame.

And then we find out that it’s so gargantuan, and it’s like you were saying before about its tentacles; this is where the government’s tentacles really are everywhere. And the president didn’t apparently even know it was happening, or cared to ask, although that also seems kind of fishy, because he’s actually getting these briefings every day that should have been referring to some of these wiretaps.

David Plotz: Well, but probably there was just what Angela Merkel is saying are private—

John Dickerson: She was too boring.

David Plotz: It was too boring. There was nothing in it of value. So, in fact, they’re doing this thing which they’re able to do because they have tremendous technology, but actually has no particular value.

John Dickerson: Though you could imagine there was a time when it needed to have value, you wouldn’t be able to quickly set it up.

But I think, going back to your point, David, is this idea that—and, Emily, you were saying this, too—the fact that this exists kind of outside of administrations. In the previous revelations from Snowden, the president was always saying, “We've got to have a balance, and I’ll look into this, and I want to have the conversation.” But, at the back of it, there was always the feeling that he didn’t really want to have the conversation. He pretty much would have preferred that this continue on so that he could use these tools himself, because he thinks they’re useful.

In this case, the tools are being used, and he, apparently, doesn’t know about them. That seems to me the best support for the idea that there is this national security apparatus that exists, regardless of what president we have, and regardless of what role the president has.

And so here you could have something that actually didn’t have anything to do with Americans, but that puts a highlight on—in a way, for me, that it didn’t when it was the spying on just Americans, which is presumably a greater thing to be exercised upon.

David Plotz: And to pile onto that, John, typically whenever anything has been raised, with the Snowden revelations, or earlier reporting from the New York Times and other places about the predations of the intelligence community. You have Keith Alexander, and James Clapper, and other people in national security come out and say, “No, no, no. Security, this trumps all. We are protecting America. You have no idea. You can’t know. The things that we do in the dark to make life safe for you are too valuable to be shared, and you have to trust us.”

With the case of Merkel, or the College of fucking Cardinals, the College of Cardinals—

John Dickerson: Strictly speaking, I don’t think that’s behavior in which they engage. But nonetheless.

David Plotz: Maybe that’s what they were spying. You cannot possibly invoke some national security claim when you’re talking about the College of Cardinals and Angela Merkel. You can’t say—

John Dickerson: Well, I think—

David Plotz: We’re doing this because this is going to protect us from terrorists. No, this is just pure straight-up espionage.

John Dickerson: Well, there is some national security, presumably.

John Dickerson: Well, we don’t know. We don’t know. There is an element of theater here. Just the other element of theater in it is that for the Europeans, now that this is all public, they have to act outraged, because they use a lot of our intelligence that we gather through these kind of methods, and they have spied on us, and have been caught doing it.

Now, Merkel is a bridge too far. That’s a new category. But it’ll be interesting to see how much of this theater, which is done for their own domestic public consumption, once it kind of works its way out, what, really, the effect of this. Do they get—one of the things that’s been talked about is the kind of agreement where, basically, we enter a new agreement with the French and the Germans, and say we—

Emily Bazelon: And the Five Eyes. Don’t forget that new spooky word that has emerged.

John Dickerson: Well, an agreement like the Five Eyes. So, the Five Eyes is, what, Britain, Canada, Australia, New Zealand, and America agree not to spy on each other. And the question is whether we would have that kind of agreement with any of those other countries. And I doubt, in the end, that we do.

Emily Bazelon: I think the Europeans have played it really in a smart way, though. They have genuine reason for outrage, faux or not, in the sense that the optics of this, of Merkel being able to say, “Hey, wait a second,” are useful. And they are likely to get more intelligence out of us from this. And, also, just highlight that the whole cost-benefit analysis of doing this kind of surveillance is completely out of whack.

David Plotz: The other big surveillance story this week, I almost think is bigger than the European one, which is that the Washington Post, also based on Snowden, published a PowerPoint, a slide, supported by other evidence about NSA stealing data from Google and Yahoo!

Emily Bazelon: Basically breaking into the collection center that we didn’t, until now, know that they had access to, and then vacuuming up essentially everything.

David Plotz: Everything; as Google and Yahoo! sent data between their data centers, the NSA was able to siphon it all away.

This is going to turn out to be a huge, huge deal, because I think Google, and Yahoo!, and Microsoft, and Facebook are, depending on the company, more and less willing to cooperate with the national security state. They will go through the legal steps. They don’t really want to be part of it, but they recognize that, if the government has legitimate court orders, if judges are saying they should do this, they’ll do it.

The idea that the government is going behind their back and stealing all this stuff without any permission from them, without any say-so, is going to drive them crazy. And I think you’re going to get a huge amount of resistance and pushback from these tech companies that will no longer sort of roll over and cooperate in the way that they have before, and then will use every method that they have to fight it. And they have—Google in particular—has significant political support in Washington. Congressmen in Washington, regulators in Washington, they don’t want to mess with Google. They want Google doing what Google does well.

And when the big reforms come, NSA is going to pay a price for this, because the tech companies are going to come out against them.

Emily Bazelon: And, to put this in context, we started the Snowden revelation ball rolling with PRISM, which was the program that meant that, oh, guess what—via the FISA core, the NSA can vacuum up metadata from all of these tech companies. But there was some court process for it, and then the numbers that came out of the numbers of requests the companies were getting were in the thousands. So, it was a lot, but it wasn’t everything.

This new revelation means that that all is like a total little jokey sideshow that who even cares about, because outside of any kind of legal process, everything, everything, everything is getting trawled through.

John Dickerson: And is that because there’s a loophole for data that’s different than phone calls?

Emily Bazelon: I don’t know. That’s a good question. Is this the same part of the Patriot Act that allows for taking business records that got so completely bent out of shape? Or is this some other justification for the use of metadata, because maybe someone involved is foreign, and so it’s justified by the Foreign Intelligence Surveillance Act? I’m not sure.

David Plotz: I think we’re headed for—I don’t know if we’re headed for l a Church Commission level of revelation and peel back of the intelligence committee, but I think we’re headed for something.

John Dickerson: I’m not sure we do.

John Dickerson: I’m not sure we are.

Emily Bazelon: Bring it on.

John Dickerson: Because in this case, if you’re going to get outraged, people are going to get outraged about domestic spying on Americans. But I don’t know how much Americans really care about Angela Merkel.

David Plotz: No, I don’t think they care about Angela Merkel. I think they—

Emily Bazelon: But what about the idea that none of the data that you thought was in your Gmail or any other of these online big companies that, actually, none of that belongs to them?

David Plotz: You have Congress annoyed. You have the big tech companies annoyed. You have the foreigners annoyed. You’re starting to get the judges annoyed. The judges don’t like the fact that, when they issue orders, the orders may not be enforced in exactly the way they think. You have the president annoyed. Every constituency here, except the intelligence committee, is really kind of irked at what the intelligence committee is doing.

And that, to me, suggests that there’s enough bubbling that someone may go after it. You have members of both parties. It’s a bipartisan issue, because you have a libertarian right and a libertarian left that both do not like what is happening.

John Dickerson: Yeah. I mean, could be.

Emily Bazelon: To be continued.

David Plotz: We’ll see.

John Dickerson: We’ll see.

David Plotz: And now, the topic that John and Emily are baffled about. We’ll see if it actually is a topic. So, there’s excitement in New York tabloids this week about the policing polices at two New York City department stores, Barneys and Macy’s; Barneys in the midst of two lawsuits, or one lawsuit and one kind of insipient lawsuit brought by black shoppers who said they were detained after shopping at their store in Manhattan. One, in one case, Trayon Christian, a 19-year-old man, had bought a Salvatore Ferragamo—

Emily Bazelon: You go for it, David. That sounds good enough to me.

David Plotz: Let’s just say a Ferragamo belt.

John Dickerson: Yeah. I think that’s best. I leave all pronunciation up to Emily.

Emily Bazelon: That’s safer.

David Plotz: He bought a $350 Ferragamo belt with his Chase debit card on April 29. He then says he was chased down on the street by plainclothes police officers several blocks away, who said he couldn’t possibly have afforded to buy the belt, and detained him.

Emily Bazelon: And that the debit card had to be fake!

David Plotz: Yeah. And the debit card was fake, which is just crazy. So, now he’s suing both the city, because of the police officers, and then Barneys.

So, we have not really talked about Stop-and-Frisk and about New York’s racial profiling problem much on this show. I suspect we’re all pretty leery of it, to varying degrees. But I am interested, particularly having a conversation with you, Emily, about, when is it okay for a private business to engage in profiling practices? If a private business, the standards for a private business are different than they are for a public business. And is it okay for a private business to start singling out particular kinds of shoppers because they suspect them of theft, or they don’t want them in the store, or whatever it is?

Emily Bazelon: No, it’s not okay. That’s why, when Macy’s was accused of this a few years ago, the New York Attorney General investigated, and they entered into a settlement in 2005. So, it’s true that private stores are not the government. It’s not the same thing as the government engaging in racial profiling. But they are stores that are open to the public; they are not really private. And so for them to be doing this is illegal, if that is indeed what’s going on.

I mean, these lawsuits are a very early stage.

David Plotz: Right, right.

Emily Bazelon: I don’t think we completely know what this policy actually was. And there is a dispute between Barneys and the police department about who was doing what here. So, I’m not so sure about the facts. But if they were, indeed, racial profiling in this way, they’re going to be in trouble.

John Dickerson: How much cause would they need to have to make it defensible? So, for example, they have records of people who have been either seen shoplifting or caught shoplifting with CCTV, and if they kept a record they could say, “Well, the profile of the person who shoplifts here is age X and racial profile X. And, therefore, we’re totally—we’re just following the science here of what we know about who takes things, and that’s what led us to pay a little bit more attention to that kind of customer.”

Can they make that kind of a defense?

Emily Bazelon: If every single theft in Barneys was a young black male, and you started profiling young black males, would that be okay? There’s no way that is true, right? I mean, that’s the problem with racial profiling, is that it always ends up—

John Dickerson: Well, I’m not suggesting…

David Plotz: What if it was just young males? Let’s take race out of the equation. What if it’s just young males?

Emily Bazelon: Then you're profiling on the basis of sex and age.

Emily Bazelon: When you have a protected category—and age is not so much one, but gender is—and then you start treating people differently based on that category, you have to have an airtight legitimate reason to do that. And I just cannot imagine that they would really have statistics showing that only young black men were stealing stuff from their stores.

Source: http://www.slate.com/articles/podcasts/gabfest/2013/11/slate_political_gabfest_transcript_for_nov_1_emily_bazelon_david_plotz_and.html
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