GWEN IFILL: Privacy, security, free speech and no small amount of politics, tonight on Washington Week.
And they're off.
FORMER TEXAS GOVERNOR RICK PERRY (R): (From video.) There is nothing wrong in America today that a change of leadership will not make happen.
SENATOR LINDSEY GRAHAM (R-SC): (From video.) It is sad for me to report to you, but Barack Obama has made us less safe.
MS. IFILL: Four more candidates hit the hustings.
FORMER RHODE ISLAND GOVERNOR LINCOLN CHAFEE (D): (From video.) Here's a bold embrace of internationalism: Let's join the rest of the world and go metric.
FORMER MARYLAND GOVERNOR MARTIN O’MALLEY (D): (From video.) To all who can hear my voice, I declare that I am a candidate for president of the United States – (cheers, applause) – and I am running for you.
MS. IFILL: Democrats and Republicans, most of them with nowhere to go but up. But could one of them become president?
In Washington, two big shoes drop as Congress completes its national security showdown, voting to rein in the Patriot Act.
SENATOR RAND PAUL (R-KY): (From video.) It's the tip of the iceberg, what we’re talking about here.
SENATOR PATRICK LEAHY (D-VT): (From video.) We will protect the security of Americans. But if we give up our personal rights and our privacy, what is that security worth?
MS. IFILL: And the Supreme Court weighs in on religion and free speech.
Covering the week, Alexis Simendinger, White House correspondent for RealClearPolitics; Peter Baker, chief White House correspondent for The New York Times; and Pete Williams, justice correspondent for NBC News.
ANNOUNCER: Award-winning reporting and analysis. Covering history as it happens. From our nation's capital, this is Washington Week with Gwen Ifill. Once again from Washington, moderator Gwen Ifill.
MS. IFILL: Good evening. The debate between privacy and security came to another head this week as the Senate voted to rein in the Patriot Act and evidence of a new government data hack came to light. In Congress, the dispute over whether to stop the government from collecting private phone data en masse – the winner, Rand Paul.
SEN. PAUL: (From video.) This is what we fought the revolution over. Are we going to so blithely give up our freedom? Are we going to so blithely go along and just say take it? Well, I'm not going to take it anymore. I don't think the American people are going to take it anymore.
MS. IFILL: But it became clear late in the week, when the U.S. accused China of hacking into federal employee records, that threats to privacy can come from without as well as within. Peter Baker wrote this week that much comes down to this: How much risk can we take? And the answer is?
PETER BAKER: (Laughs.) Well, not enough, obviously, because you saw it with these two different episodes that you just talked about, the nature of warfare today. It's not always about bombs and guns and tanks; it's about how – it’s about 0s and 1s and digits and things all kinds of things I don't understand, quite honestly. And the question is, how do we limit ourselves and how do we defend ourselves, right? Where is the balance?
And 14 years ago when the Patriot Act passed, just one senator argued against it and voted against it – that was Russ Feingold, who’s running again now trying to get his old seat back. And this week you saw 67 senators vote for a bill that would pull back, for the first time in a significant way, some of the things that had been authorized in that bill, and that says what’s changed in our society in these – in these 14 years. We are concerned about privacy, but we’re also trying to figure out the right balance on security.
MS. IFILL: It seems like the argument’s about something – we did see what Rand Paul did, and that there is lot of politics involved in that, but there's something more fundamental going on. And this week we saw about the data hack, allegedly from China. We saw this vote on the Patriot Act. And then we saw a story – an Associated Press investigation about FBI planes surveilling, flying over major parts of the country. It does make you wonder what Americans think about this and whether they worry at all?
MR. BAKER: Well, Americans are conflicted, right? They want everything, as they do. They’re not as scared today about terrorism as they were before. That's an important point. You know, in the aftermath of 9/11, about one out of every two Americans thought that they were in serious danger of a terrorist attack in their home area, imagine that. Today it's down to 16 percent, the lowest since the attacks.
MS. IFILL: One-sixth?
MR. BAKER: One-sixth percent.
MS. IFILL: Huh.
MR. BAKER: On the same – at the same time, you can see poll numbers that say we are against the mass collection of data, which has just now been changed by Congress, but we also don't think the government's doing enough. And if we're asked are we more concerned about losing our liberty or being safe, they say we're more concerned about being safe. So Americans are sending conflicting messages to the politicians and the politicians are sending conflicting messages back because they're doing a little of both.
You know, this bill changes the nature of this collection program and says we can’t have the government hold onto all this data, but the telephone companies are going to hold on to it and they can still access it through the telephone companies, and the vast apparatus of intelligence and counterterrorism that’s been put in place since 9/11 remains intact. So it’s a change, but it’s not, you know, a wholesale revision of what we put in place.
PETE WILLIAMS: Can I ask you a news magazine cover question? Did Edward Snowden win?
MR. BAKER: He says he did. He called this a historic victory in an op-ed that he wrote for my paper. And I think in the sense that he has shaped the debate, you can say that his actions have had an impact, right? We would not be debating this, but for the revelations that he put forward a couple of years back. Having said that, he also revealed a whole lot of other programs and a whole lot of other surveillance that was not addressed by this legislation. And the question then becomes, is this the beginning of reform effort or is this the end of it?
MR. WILLIAMS: And what's your answer?
MR. BAKER: Well, I think that remains to be seen. I think Rand Paul joins forces in some ways with some on the left who find this to be an inadequate solution, right? He didn't think that the final version passed was good enough. And a lot of people on the left don't as well. And the question is whether they have enough political juice to push forward. Congress is going to go home now and say we acted; we did something. It should be enough. And that's going to be hard thing for them to overcome.
ALEXIS SIMENDINGER: Peter, we certainly saw the administration trying to take advantage of what they called the Kentucky feud, which was the disagreement between Senator Paul and the Republican leader, Mitch McConnell. You know, beyond that in the Republican field, what are some of the other political implications that we are seeing on the campaign trail or that you’re paying attention to?
MR. BAKER: Well, it’s interesting, right, because I think two years ago when Rand Paul sort of emerged on the national stage, he made a big splash with his long filibuster on these kinds of issues. And the country seemed to move away from that, at least the Republican Party seemed to move away from that, in the last couple of years. The rise of ISIS seemed to encourage a more hawkish conversation within the Republican Party. And this is Rand Paul's effort, I think, to kind of get back to where he started, to get back to the kind of issue that animated him in the first place. And that debate is fundamental and really interesting in the Republican Party. Are they the party of the last 10 years? Are they a party that thinks the last 10 years went too far? And, you know, I think Rand Paul probably still has a hard uphill battle to make that case, but it was very interesting.
MS. IFILL: One of the things about Senator Paul, and it will be interesting to see how this plays out in an election year when he's running for president, is he's not much for splitting the difference. He’s not much for finding middle ground in anything. And it seems to me this is something that kind of cries out for it, unless it's possible that middle ground doesn't exist.
MR. BAKER: Well, that’s right. And what is the middle ground? How far can we go? What principles do you outline that say this far and no further? And, you know, we used to have a pretty good understanding of it. We had warrants and the police could do this and the government could do this. And now technology is moving so fast, so expansively, that we never kind of thought through what does that mean?
So this – you know, we now have a revelation in my paper by my colleagues that the NSA has been looking at Internet data trying to find hackers. They're supposed to only be looking at that tied to foreign sources, but they want to actually look at signatures – cyber signatures that may not be from foreign sources. And in the process, they’re sweeping up information from Americans that had been stolen by hackers. Where are the limits? Where should we draw the line? Should we segregate that somehow so that that information is not available to the government? And does it matter anyway?
MS. IFILL: And when there’s evidence that – or at least allegations that a foreign government, in this case China – or Russia, we’ve seen in the past – might be hacking into government records, private records of individuals, doesn't that justify – the means justify the end? That becomes part of the discussion.
MR. BAKER: Well, it does show how things have changed, right? Four million federal workers or their retired counterparts had their Social Security numbers and other data filched, apparently by the Chinese. That's a big deal. And, you know, there are limits to what the American government can do, even under the pre-Snowden era but they’re not certainly, obviously, in China.
MS. IFILL: Thanks, Peter.
On to the Supreme Court, where we have grown so accustomed to disagreement that it's worth exploring what happens when most – justices mostly agree. It happened twice this week on two big cases. In one, the court decided it's an employer's responsibility not to discriminate against employees who wear religious garb. And in another case, the justices ruled in a way that tested the limits of what you can say online. And Pete is here to explain it.
MR. WILLIAMS: Right. Well, most of the time the Supreme Court gets a lot of attention when it interprets the Constitution. This is the other part of the Supreme Court’s gig, which is interpreting what federal statutes mean.
On the employment case, there is a law that makes it illegal to discriminate against somebody in hiring based on their religion. This case involved a teenager from Oklahoma who wore a headscarf and applied for a job at Abercrombie and Fitch, which has a sort of preppy code policy – dress code that forbids wearing things on your head. It actually says caps, but it means anything on your head. And the company decided it wouldn't hire her.
She claimed religious discrimination, but the lower court said, well, no, you never asked for an accommodation. You never told them you had to wear this headscarf because you're a Muslim.
MS. IFILL: For religious reasons.
MR. WILLIAMS: Right. So the Supreme Court said, nope, that's not right, that the law forbids anything that uses religion as a factor – a motivation in making an employment decision, in refusing to hire somebody. So if the court said if an employer certainly knows or even suspects that someone might need a religious accommodation, they can be sued. You can’t do that, even the court said, if it’s a mere hunch.
The other case involved Internet threats. A man who is an amusement park worker in Pennsylvania, his wife left, took the kids. And he started writing threatening things on Facebook. He said: There's one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess soaked in blood. And after she got a restraining order, he said: Fold it up, put it in your pocket. Is it thick enough to stop a bullet? So he was prosecuted and found guilty of violating a federal law that makes it a crime to communicate threats.
Now, the Supreme Court said what was wrong at his trial is that the prosecutor told the jury the test is: What would a reasonable person think upon seeing that message, would they find it threatening? Nope, the Supreme Court said, that's backwards. This is a criminal law. You have to look at the person's intent. And so he can't be convicted unless he intended to send a threatening message or unless he sent it knowing it would be perceived as a threat. So it makes it harder to prosecute threats, but it makes it easier to sue for discrimination in employment.
MS. SIMENDINGER: Pete, how did the votes come down? And tell us about the dissent.
MR. WILLIAMS: Well, as Gwen said, these were almost unanimous decisions in both cases.
MS. IFILL: In fact, Justice Scalia said in the first case, oh, this is easy.
MR. WILLIAMS: Oh, this is easy, right. (Laughter.) Which I think he meant, this isn’t so easy. But in a way, he was saying the law is fairly clear on this. They were eight to one in both cases. In both cases, Clarence Thomas was the dissenter. Clarence Thomas, the former head of the EEOC, said, nope, this is not the way the law is supposed to work. If an employer has a neutral policy that nobody can wear a headscarf, then that trumps the religious interest. And the Supreme Court said, no, you’ve got it backwards. And on the other thing, he said, you know, the test should be in the eye of the beholder.
MR. BAKER: We’ve got a – these are almost unanimous rulings, but doesn't suggest that necessarily there's a lot unanimity to come, does it? What’s on the docket for the rest of this term in the next few weeks?
MR. WILLIAMS: It would be – (laughs) – it would be shocking if the rest of the big decisions are eight to one.
MR. BAKER: Yeah.
MR. WILLIAMS: We have 22 cases left to decide. We have four decision days scheduled in June. The court will always add extra ones. But we have a test of the new chemical combinations for lethal injections. But the two biggies that will keep us up late toward the end of the term are a test of – a challenge to Obamacare, and, of course, the issue of same-sex marriage.
MS. IFILL: I want to ask you about John Roberts, because I always want to ask about John Roberts and what the Roberts court is turning into this session. No matter which way they go on Obamacare – which actually could change your answer by this time next week – but in the case of these two cases this week, does this tell us anything about the kind of court that he runs, that he operates?
MR. WILLIAMS: Well, on the one hand, a decision by the Supreme Court would normally be seen as sort of liberal when it makes it easier to sue an employer. But remember, this is a – you could view this decision as an interest of religious rights. And we've seen that a couple of times, in the – this is a very pro-freedom of religion court, under John Roberts. And although the Internet Facebook case is technically about interpreting criminal law, it's also a sort of pro-free expression, pro-First Amendment, even though that didn’t come into the mix.
MS. IFILL: Well, that’s an important point. This was not a constitutional decision.
MR. WILLIAMS: No, neither one.
MS. IFILL: But here’s the thing, this court also looks – has a reputation of being a pro-business court, right?
MR. WILLIAMS: Yes.
MS. IFILL: But in this case, the retailer, which is saying – which won in a lower court, was saying, you know, we are doing our best to figure this out. And they ruled against them.
MR. WILLIAMS: They did. And –
MS. IFILL: That religion trumps the business imperative?
MR. WILLIAMS: It does. That's what the Supreme Court said, that it's not enough to say it wasn't discriminating because it wouldn't hire anybody who wears something on the head. That the court says neutral policies have to give way to the need for accommodation. Of course, what the laws says, provided accommodating somebody’s religious needs doesn't provide an undue hardship. But I think it’s the religious factor that’s an interesting thing here. It's not just an anti-business decision; it’s really a pro-religious rights decision.
MS. IFILL: And on the second case – just one more question – it is conceivable that if you threaten your ex online, you're still prosecutable. This case just says, not the way this was prosecuted.
MR. WILLIAMS: So, what the court said is – it basically said, OK, we'll tell you what the test isn't. The test isn't how the beholder perceives the message. The test is, what did the sender have in mind? Now, the court left open big questions like, OK, if you meant it as a threat or you knew it would be perceived as a threat, yeah, you can be prosecuted. But what if you sent the threat sort of reckless about whether it would be – the message reckless about whether it would be perceived as a threat? And, you know, women's groups said this decision was horrible because these threats can cause real pain, real fear, a lot of lost sleep.
MS. IFILL: It’s hard to imagine how somebody threatening to bloody you up, it could be perceived any other way by the court.
MR. WILLIAMS: Yeah. Right. Even when they say it’s a joke.
MS. IFILL: OK, thank you.
When it comes to the 2016 campaign, we keep track so you don't have to. (Laughter.) This week we have four new hats in the ring. Actually, one of them has been there before.
MR. PERRY: (From video.) The question of every candidate will be this: When have you led? (Cheers.) Leadership is not a speech on the Senate floor. It's not what you say. It is what you have done. (Cheers, applause.) And we will not find the kind of leadership needed to revitalize the country by looking to the political class in Washington.
MS. IFILL: Now, in case you missed that, former Texas Governor Rick Perry managed to take a shot right there at virtually every other candidate in the race, and one in particular who is not officially even there yet. But if you look at the early poll standings for the four who joined this week – Perry, South Carolina Senator Lindsey Graham, former Rhode Island Senator Lincoln Chafee and former Maryland Governor Martin O'Malley – you would surely find them at the bottom of the pack, which raises the question: What path does each man see to the top? And the unenviable job of figuring that out for us tonight falls to Alexis.
MS. SIMENDINGER: You know, politics is all about optimism, and – (laughter) – I would suggest that in this group of four, that is what they are really pinning their hopes on. For the former governor of Texas, a lot of this is reclamation of a reputation, right, because he ran before and he did so poorly in the – in the last go-round. And he has gone back –
MS. IFILL: Let’s remind – it can never hurt to remind people why he did so wrong. He was on a big debate stage –
MS. SIMENDINGER: Well, OK, because he couldn't remember parts of his promises about the three federal agencies, departments that he would have gotten rid of if he were president And in the debate –
MS. IFILL: Which is why that's important, is because that may be all that some people know about him.
MS. SIMENDINGER: That might be the only thing people know about him. And what will live in infamy is the word “oops.” So, you know, on a debate that was considered – and he has admitted this. He has been very candid about how he was going to do things very differently.
But the former governor has some other problems. One is that there is another Texan in the race, right? This is Ted Cruz, the senator from Texas. So there's some suggestion of what lane is Governor Perry thinking that he's driving in? Obviously he's trying to be very assertively conservative on all the range of things – taxes, and regulations, and domestic policy. But he's also trying to suggest, too, that he has learned a lot about foreign policy. And he is trying to be – he went back to school, he's been encouraged and tutored by some really smart people on foreign policy. And he wants to show that he has really boned up.
On the flip side, we have another Republican, as you said, from South Carolina, Lindsey Graham, who also is trying to occupy this space on being very conservative on international policy. And he is trying to argue that he has the best knowledge in the field among Republicans on tougher foreign policy. But even in his state, in South Carolina, there are folks who have seen him win race after race in South Carolina, who aren't sure that he is going to be able to find even that favorite son standing in what's, you know, a first-in-the-nation Southern primary.
MR. BAKER: I mean, Lindsey Graham’s kind of the anti-Rand Paul, right, in this contest. I mean, he’s the one who believes we should be doing more, more aggressively; Iraq is a disaster, the president’s responsible for that. But when he says that, is he talking about sending troops back? Some of these other candidates talking about how the president has failed in Iraq, do they want to return troops there in a real way, or do they have other ideas?
MS. SIMENDINGER: The discussion that they have in response to questions has been, no, we’re not talking about combat troops on the ground. What we’re talking about is a much more assertive strategy that uses special ops and training, and sending weapons and using the airstrikes more assertively with spotters on the ground, and making it a full-on kind of an assault as opposed to President Obama’s attitude, which is, you know, very much this is a problem for the region and we are going to try to be helpful as opposed to take ownership of this.
MR. WILLIAMS: Other than deploying the very potent pro-metric system position – (laughter) – how are the Democrats trying to –
MS. IFILL: That would be Lincoln Chafee, just to clear things up –
MS. SIMENDINGER: Yes.
MR. WILLIAMS: How are the Democrats basically running against Hillary Clinton?
MS. SIMENDINGER: Well, Lincoln Chafee from Rhode Island announced this week. And we had Martin O’Malley, the former governor of Maryland, announce last Saturday. And I covered both gentlemen. And it was interesting, none of us in the room were expecting Lincoln Chafee from Rhode Island – former governor, former senator; he used to be a Republican, turned independent, turned Democrat – to take a stand on metrics. But there he was, and it was an eye-opening moment.
The way they’re coming at Secretary Clinton is very interesting in the sense that, in Lincoln Chafee’s case, he is unabashedly, assertively muscular about it. And he is a very soft-spoken sort of geeky gentleman normally, and he is taking it to her on the questions of the State Department, her reputation, the emails, money.
MS. IFILL: I was just going to say, you want to quick talk about O’Malley?
MS. SIMENDINGER: And O’Malley is taking her on in terms of experience, youth. And he is trying to argue also on domestic policy that he can outdo her with voters.
MS. IFILL: OK. Well, domestic policy might include his record as mayor of Baltimore, which has been having its issues lately. So we’ll be watching –
MS. SIMENDINGER: They all have baggage.
MS. IFILL: They all have baggage. Well, that’s what we live for. Thank you, everybody.
We have to go tonight, leave you a little bit early so you can support stations that support us. We want to join you before we go in saluting our great leader, Sharon Rockefeller of WETA here in Washington. She celebrates 25 years at the helm this year, and we’re counting on 25 more.
Also tonight, we want to send our condolences to the family of Vice President Joe Biden, who lost a son, a husband, a brother and a father when former Delaware Attorney General Beau Biden passed away last weekend. We wish you peace.
(Pause.)
That’s all, folks. But there’s more online in our Washington Week Webcast, where we’ll talk some more about law, justice and policies. You can watch it later tonight and all week long at PBS.org/WashingtonWeek. Keep up with daily developments with me and Judy Woodruff over at the PBS NewsHour, and we’ll see you here next week on Washington Week. Good night.
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