BROOKE GLADSTONE: From WNYC in New York, this is On the Media. I’m Brooke Gladstone.
BOB GARFIELD: And I’m Bob Garfield. This week, less than a month to go before Inauguration Day, President Obama seemed to be rushing through his bucket list, or maybe his rhymes with “bucket” list.
MALE CORRESPONDENT: The President placed a ban on oil and gas drilling in nearly all the country’s Arctic waters and large sections of the Atlantic Ocean.
FEMALE CORRESPONDENT: President Obama is delivering a generous parting gift to Planned Parenthood in the form of a rule prohibiting states from divesting millions of dollars from the nation's largest abortion provider.
MALE CORRESPONDENT: The Obama ministration says it is ending a dormant program that was once used to track mostly Muslim men entering the United States. The program is called National Security Entry-Exit Registration System, or NSEERS, for short.
BOB GARFIELD: A busy week, but advocates who are watching the minutes tick down to the Trump administration, not nearly busy enough. So we’re going to spend much of this show considering what the President could do and what some people wish he would do in order to safeguard some basic American principles.
First, as to that Muslim registry, otherwise known as NSEERS, that item was disposed of this week but we still had some questions, so we put them to ACLU Senior Staff Attorney Omar Jadwat.
OMAR JADWAT: The way it worked was that they added countries to a list and if you were from one of those countries then you'd be required to abide by the special NSEERS rules. So in 2011, they reduced the number of countries on that list to zero, so that there were no countries on the list whose nationals were subject to NSEERS.
BOB GARFIELD: What this administration is doing now is discarding the regulation altogether.
OMAR JADWAT: That’s correct. There is no longer a regulatory framework under which this administration or any future administration can designate a bunch of countries and say if you’re from one of these countries, you need to do all of the following special things in order to stay in this country.
BOB GARFIELD: NSEERS was replaced by a still broader program that exposed still more people to scrutiny.
OMAR JADWAT: Some people point to US-VISIT as a broader version of the NSEERS program, and it's true that US-VISIT did some of the tracking work that was part of what NSSERS supposedly was designed to do, that is, keep track of when people entered the country and when they left it and when their authorizations to be here on a temporary visit was supposed to expire. But the US-VISIT program didn't and doesn't include this discriminatory aspect of NSEERS in that it targets only people of a certain religion and/or national origin, and it also doesn't include the interviews that were part of NSEERS that were a means by which the government discovered totally unrelated problems with people's immigration status that they then used to try to lose people.
BOB GARFIELD: Has the Obama administration really accomplished anything? Cannot the Trump administration, with the stroke of a pen, simply recreate NSEERS?
OMAR JADWAT: Not with the stroke of a pen. They would have to go through a rulemaking process that involves publishing notice and soliciting comments from the public and responding to those comments. If NSEERS was a loaded gun sitting on the table, at the very least the administration has removed the bullets and locked them in a separate room.
BOB GARFIELD: Omar, thank you very much.
OMAR JADWAT: Thanks.
BOB GARFIELD: Omar Jadwat is a senior staff attorney at the American Civil Liberties Union.
BROOKE GLADSTONE: The White House dismantles the Muslim registry with a rule change from the Department of Homeland Security. It protected funding for Planned Parenthood with a rule from the Department of Health and Human Services. Such agency rulemakings don't go through Congress and, while they're not Trump proof, they’re cumbersome to repeal or reinstate. Another tool at the President’s disposal is the executive order, which also skirts congressional approval but can be easily undone by incoming President Trump.
Though Obama has always stated a preference for legislative solutions, congressional leaders resisted those so in his two terms he’s issued 267 orders, addressing climate change, LGBT discrimination, and much more.
BOB GARFIELD: One more such order could, in part, address what the President himself has called, quote, “a threat to our democracy,” the Supreme Court's Citizens United decision and the increasing impact of untraceable dark money on elections.
The Brennan Center’s Daniel Weiner.
DANIEL WEINER: We've advocated for the President to issue an executive order requiring large government contractors to disclose most of their political spending. Large amounts are allowed to remain secret and, you know, we think an executive order could fix that.
BOB GARFIELD: Now, there are rules already in place, are there not, that prohibit certain contributions from federal contractors.
DANIEL WEINER: There is a prohibition on contracting individual or entities giving directly to candidates and political parties. And, on its face, that prohibition might also cover super PACs and dark money groups, but it has been interpreted only to apply literally to the entity that holds the contract. So a wholly-owned subsidiary would not be subject to the prohibition, likewise a parent corporation. And what we’re really talking about here are large, often multinational corporations, that have, you know, hundreds, if not thousands of different affiliates. And so, essentially the law that's on the books right now does very little work.
BOB GARFIELD: In case this isn’t altogether obvious, in a Citizens United era in which the law of the land says that corporations are allowed to give money just like any individual, should contractors be prohibited from contributing to political figures?
DANIEL WEINER: Well, look, the public has a strong interest in making sure that when the government procures services from the private sector it gets the best bang for its buck and that contracting decisions are made based on merit, not based on, you know, who's best at playing a political money game.
BOB GARFIELD: All right, let's just say you get your way and the President issues an executive order banning certain kinds of contributions or, or requiring much more transparency than we have now, why wouldn't Trump just come in and rescind it?
DANIEL WEINER: I would argue that someone who campaigned partly on, quote, “draining the swamp” and sounded notes very similar almost to Bernie Sanders about the corrosive influence of big money on American politics, might want to think twice before rescinding a pretty common-sense protection for taxpayer dollars.
You don’t – I mean, you’re laughing –
BOB GARFIELD: I’m sorry, I’m just laughing at what you said. [LAUGHS]
DANIEL WEINER: So here’s the deal, here’s the deal. Look, you’re right to laugh. Hope springs eternal for me. We would have said that President Obama should have done this a long time ago, but he didn't. This is what he can do now. And then it’ll be up to President Trump to show whether he actually intends to keep his promises.
BOB GARFIELD: Daniel Weiner serves as senior counsel for the Brennan Center’s Democracy Program.
BROOKE GLADSTONE: The President could also use his power to declassify sensitive documents because, obviously, the public can't un-know what's been disclosed, For instance, transparency advocates have urged Obama to release the full text of the Senate's Torture Report, fearing that the Trump White House might destroy the few existing copies. Last week, the White House announced that one copy would be archived among Obama's presidential papers. So it won’t be destroyed but it won't be declassified for 12 years either.
BOB GARFIELD: So much to disclose, so little time, particularly about the US surveillance apparatus and the drone program, both largely shrouded in secrecy. Pratap Chatterjee is the managing editor of the public interest group Corp Watch. Recently in The Nation, he advised three actions for this president to help keep the next president in check.
PRATAP CHATTERJEE: To publish, to punish and to pardon.
BOB GARFIELD: To shed light on what in particular?
PRATAP CHATTERJEE: The Obama administration has conducted 473 drone strikes in Libya, Pakistan, Somalia and Yemen between 2008 and the end of 2016, and it has killed at least 2500 people. However, how the President chooses who to kill is a secret. In the last six months, the Obama administration has released some documents suggesting that it relies on a principle that it defines as near certainty that a target is a, quote, unquote, “terrorist” before it issues in order to execute them But we don't exactly know what that means.
Donald Trump himself has said he is going to go after ISIS, so when he says that he has killed somebody based on his decision that this person’s a terrorist or not, we have no way of telling that this was any different from what President Obama did, unless we have access to those very rules.
BOB GARFIELD: That’s drones. What would you like the administration on its way out to reveal about surveillance programs?
PRATAP CHATTERJEE: We know that the US government has regularly received permission from the Foreign Intelligence Surveillance Court to collect all US telephone metadata via programs like Stellar Wind. We know about a program called Prism, which allowed the US government to tunnel directly into servers of nine major Internet companies, like Google and Yahoo and Apple. We know that they tapped the global fiber optic cables that lie on the ocean beds that connect the countries. We know that they set up a vast database called XKeyscore to track all data from any given individual and that they’ve even built a program called Optic Nerve to turn on users’ webcams.
We now know, thanks to a Freedom of Information Act request that was made by The New York Times, that many of these programs resulted in data that was relatively useless; 99% of that data is actually information on innocent people. That’s a real threat to civil liberties.
BOB GARFIELD: There’s another slightly less prominent threat that you see, and that has to do with contracts between the government and private companies for data.
PRATAP CHATTERJEE: For example, AT&T has agreements with police forces around the country to pay them for data on private citizens in order to track people down. What I would ask the Obama administration to do is to publish the details of these contracts, so we know under what circumstances this data is made available to the government, so we could choose how to protect our own data.
BOB GARFIELD: Obama's created a rather robust precedent for his successor. Never mind what you want him to do now, shouldn’t he have thought of this eight years ago?
PRATAP CHATTERJEE: Being a law professor, he believed that you could make change through executive order. The, the right decisions could actually enforce civil liberties and protect citizens from terrorism. But what he actually did was create a system by which he alone, the president alone, got to choose who to target, whose data to collect and who to put into jail. I think it behooves Obama, if he wants to have a legacy of being transparent, if he wants to be seen as a champion of civil liberties, to apologize for some of his mistakes, to ensure that future presidents do not have access to the kinds of tools that, in fact, have been abused in the last eight years.
BOB GARFIELD: Pratap, thank you very much.
PRATAP CHATTERJEE: Thank you.
BOB GARFIELD: Pratap Chatterjee is the managing editor of Corp Watch, a public interest watchdog organization.
So any other intractable problems lying around? Oh, how about Guantanámo? The Miami Herald's Carol Rosenberg has covered the detention camp since it opened in 2002. In recent visits there, she’s noted a change in the atmosphere, perhaps embodied best in an interaction involving a prisoner and his artwork.
CAROL ROSENBERG: Khalid Qasim is a Yemeni man who's been at Guatanánmo for coming up on 15 years. He’s what we call a “forever prisoner.” He’s a man who has not been cleared for release. But he's taken an art class down there, and I was on a tour, a visit to the lockup for cooperative captives called Camp 6, and Qasim realized that the media was there. So Qasim scrambles and gets a piece of art, and it’s a question mark and instead of a dot at the bottom, there's a lock.
So there was a debate inside the detention center among the leaders: It’s communication and that's generally forbidden, for the media to communicate with the prisoners and for the prisoners to communicate with the media. So some of the commanders were saying, maybe we should censor the picture, maybe we should order them to destroy it. But, you know, this is an uncertain time at Guantánamo. There's no doubt. Everybody knows this. So the decision was made that we could keep the picture of the art. And the next day when we went to an interview with Commander Clarke, he used it as a metaphor for these times of uncertainty at Guantánamo Bay.
BOB GARFIELD: We could keep Guantánamo as is, with only 59 prisoners still at the base. We could empty it. Or we could, as Trump vowed during the campaign, fill it up. And nobody there knows which of those things is going to happen.
CAROL ROSENBERG: Nobody knows, so there are 59 detainees there now; 23, as of this week, are cleared for release. But just because someone's cleared, it doesn't mean they open up the doors and let people out. The State Department has to negotiate resettlement or repatriation agreements, and this has become increasingly difficult since Donald Trump was elected because some of the countries that were willing to take these people to help out President Obama recognize that now it's all about negotiating with Donald Trump. Trump campaigned on a pledge to load it up. What does “load it up” mea? The prison at Guantanámo was created for Al Qaeda, the Taliban and associates. Those organizations don’t exactly exist in the same form today, so the question becomes, if they capture a pirate, if they capture someone from Al Qaeda in the Arabian Peninsula, which is Yemen, if Syria or Iraq turned over someone that they said was ISIS from the Islamic State, would that person qualify for detention at Guantánamo? It’s never been tested in federal court.
BOB GARFIELD: Carol, what’s gonna happen?
CAROL ROSENBERG: In short term, I think the releases will stop on Inauguration Day. The Attorney General designate, Jeff Sessions, he's all about Guantánamo. He doesn't want to prosecute them in federal court. He said way back in 2010 that, you know, we should stop treating terrorists like civilians. That’s the short term.
The long term is I don't see it at this stage ever closing. It’s become too politicized and too popular with a huge portion of America. Obama tried to make the argument that this was not good for us, and it didn't work. People like Guantánamo. Congress likes Guantanámo. They like the signals it sends. I’ve been doing this thing since day one, and I've come to increasingly suspect that this will be the Spandau Prison of our time. Rudolf Hess was 93. He died there in 1987. When he died, they tore that prison down. And to me, I'm not - it just feels like this is going to become waiting for the last detainee to die before they shut that thing down.
BOB GARFIELD: Carol, thank you very much.
CAROL ROSENBERG: Thank you, Bob.
BOB GARFIELD: Carol Rosenberg covers Guantánamo Bay Prison for the Miami Herald.
BROOKE GLADSTONE: Speaking of people on the wrong side of the law –
KEVIN CORKE: Accused Army deserter Sgt. Bowe Bergdahl, transgender military secrets leaker Chelsea Manning and exiled NSA whistleblower Edward Snowden, each looking for an eleventh hour reprieve.
BROOKE GLADSTONE: Pardons. The President says he doesn’t have the power to pardon Snowden.
PRESIDENT OBAMA: I can't pardon somebody who hasn’t been - gone before a court and presented themselves.
BROOKE GLADSTONE: Technically, that’s not true. In federal cases, there is no restriction on the president's power to pardon. But if the president is disinclined to forgive those he believes damaged national security, he's eager to free those he says have been sentenced too harshly and for too long.
MALE CORRESPONDENT: President Obama granting 78 pardons and 153 commutations Monday. That’s a single-day record for the use of presidential clemency power. Altogether, he has commuted the sentences of over 1100 inmates, the majority of those cases involving drug-related charges.
BROOKE GLADSTONE: Fast work, considering that just two years ago he had the lowest clemency rate of any modern president. But, according to activists like author and law professor Mark Osler, not fast enough. Mark, welcome to OTM.
MARK OSLER: Well, thank you.
BROOKE GLADSTONE: When you think of pardons, it, it has acquired a, a bit of a smell because Clinton pardoned a big donor, Mark Rich, and George W. Bush pardoned Scooter Libby.
MARK OSLER: Right.
BROOKE GLADSTONE: And famously, I guess, Ford pardoned Nixon.
MARK OSLER: Yeah, and that’s one of the things that makes what President Obama has done so significant. It has been completely free of that kind of favoritism. Instead, it’s gone out to people who are the least powerful, who aren’t connected at all. The President writes a letter each time he's granted clemency to someone to that prisoner. A letter from the most powerful person in the world to the least powerful person in the world, that’s gone a long ways towards reclaiming the legitimacy of the pardon power.
BROOKE GLADSTONE: Just Monday, he granted clemency to 231 people. The White House claims that was the most individual acts of clemency granted in a single day in this nation's history. And that was –
MARK OSLER: If yes -
BROOKE GLADSTONE: - wrong, you said. [LAUGHS]
MARK OSLER: Well, you know, President Truman pardoned 1,523 specific people in 1947. And what it obscures, unfortunately, what President Ford did. He granted clemency to almost 14,000 people who were either draft evaders or Army deserters, over the course of just one year.
BROOKE GLADSTONE: In the criticisms and the defenses of President Obama’s actions on clemency, there are some misconceptions, one of which is that he can grant a pardon to anybody. He really can’t, can he?
MARK OSLER: No, he’s limited to just the federal prisoners, and of the two million-some people that are imprisoned in the United States, only about 200,000 are in the federal prisons, and those are the people that the President can reach.
BROOKE GLADSTONE: Critics say that the whole point of the pardon is to send a message, to take a political risk. Do you agree with that or is it more important just to get the most justice to the most people as quickly as you can, no matter their crime?
MARK OSLER: No, I think the symbolism is really important. It’s also a signal to prosecutors in the field. When prosecutors see that the president is having that view of these kinds of offenders, it’s going to result in different charging decisions, for example. And we've seen that.
BROOKE GLADSTONE: Mm. There’s a lot the President could focus on right now, a lot of issues that people are hounding him to take up. With his limited time, argue for changing the way he pardons people.
MARK OSLER: This is the one issue that the Constitution put squarely in his hands. It was actually quite controversial because of the power of kings, and because that is solely in his hands, it’s also solely his responsibility.
BROOKE GLADSTONE: So he’s sitting in front of me right now. You have 30 seconds to tell him what he can do right now.
MARK OSLER: Mr. President, you have groups of people who the American people know are serving sentences that are too long, for example, those were serving crack sentences that were changed in 2010 under the Fair Sentencing Act. Identify them and boom, get it done. If you're worried about public safety, just look at how the Bureau of Prisons has classified them. Those people have assessed their dangerousness. Trust the Bureau of Prisons and make the decisions quickly.
BROOKE GLADSTONE: Mark, thank you very much.
MARK OSLER: I'm so glad you're talking about this.
BROOKE GLADSTONE: Mark Osler is a lawyer, author and professor of law at the University of St. Thomas in Minneapolis.
BOB GARFIELD: Members of the Trump transition team have sent their own message to President Obama, that climate change, in which they don't believe, does not merit study by the federal government, which has given California Governor Jerry Brown a mission.
GOVERNOR JERRY BROWN: And we got a lot of firepower. We got the scientists, we got the universities. We have the National Labs. And if Trump turns off the satellites, California will launch its own damn satellite! We’re gonna collect that data.
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BOB GARFIELD: Meanwhile, a small army of volunteer archivists, scientists and advocates have been working to save the government climate change research that already exists.
ERIC HOLTHAUS: At NASA and NOAA that take the temperature of the planet from weather stations, from satellites, from ocean buoys.
BOB GARFIELD: Meteorologist Eric Holthaus spoke to NPR about his effort to save government climate data.
ERIC HOLTHAUS: Sometimes these data sets are only stored in United States government servers, so there hasn't really been an effort to catalog those in other countries because we haven't thought that it was necessary before.
BOB GARFIELD: The Internet Archive, on the other hand, has given a lot of thought to what gets lost in presidential transitions. Every week, the Archive saves 300 million web pages and every four years it enlists a bunch of volunteers to make copies of government websites as a hedge against what the next administration may choose to delete. It's called the End of Term Web Archive and, for some reason, this year, the organizers are getting a lot more offers of help. Brewster Kahle, founder of the Internet Archive, says that this year his team also is backing up its data to Canada.
BREWSTWE KAHLE: When the election went the way that it did, it was a bit of a surprise, so we looked through the television archive at what President-elect Trump said about freedom of the press and about the Internet, and what we found was shocking, that he wanted to close up parts of the Internet, that there was mocking of freedom of the press. This was, you know, kind of a wake-up call and we said, let's make sure we have a copy in some other location.
BOB GARFIELD: What are your priorities and how does it work?
BREWSTWE KAHLE: So the Internet Archive works with the Library of Congress, the University of North Texas, now a growing list of groups to try to do as best we can to record the information that's available on the website and now the web services that have been made available on .gov and .mil websites. We found in 2008, 83% of the PDFs that were available back then are no longer available, even by 2012. So with an 83% loss rate when the Obama administration came on board, we are likely to see something like it, maybe even more, with the Trump administration. So we're coordinating activities to go and archive web pages and we’re reaching out to federal webmasters to go and see if we can keep whole services up and running. Can we take virtual machine versions of the databases that they're running and be able to run them in snapshot form, so that we can keep these services going, as they were in 2016, in the future?
BOB GARFIELD: Give me some examples of when the federal web archive has come in handy? Was there something that you un-disappeared that you were super glad to have archived?
BREWSTWE KAHLE: Oh, the anecdotes go on and on. Example, there’s a press release from the White House during the George W. Bush administration when he stood on an aircraft carrier and declared mission accomplished, and the headline of that press release was, combat operations in Iraq had ceased. But a couple of weeks later, they changed the headline and said, major combat operations had ceased, with no notice that it had changed. The only reason why we know is because we had archived both versions. And then a couple of months later, the press release went away completely from the Web. You know, what, what is more Orwellian, is it changing of a press release that’s in the past or is it disappearing it completely?
BOB GARFIELD: What are you most worried is going to disappear in a Trump administration?
BREWSTWE KAHLE: Frankly, we have no idea. This upcoming administration is very aware of the power of the Internet and how it can be manipulated, how you can go and push things out in the middle of the night and use the journalist system in ways that are really pretty blatant. So let's at least keep a record of it.
BOB GARFIELD: We have just experienced the interference in a political campaign by outsiders. Is this archive secure, I mean really secure against hacking, against intrusion?
BREWSTWE KAHLE: The history of libraries is a history of loss. Libraries are burned. That's what happened in the Library of Alexandria. It will be what happens to us. I just don't know when. So let's design for it. Let's go and make copies in other places. Let's make sure people want universal access to all knowledge, that they want education based on facts. Let's go and make sure that there is an environment that supports libraries. That's the only way that, in the long term, we’re going to survive, and the copies that are maybe now unique at the Internet Archive will survive based on all sorts of changes, whether it’s earthquakes or institutional failure or law changes.
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BOB GARFIELD: Brewster, as always, many thanks.
BREWSTWE KAHLE: Thank you very much.
BOB GARFIELD: Brewster Kahle is the founder of the Internet Archives and a partner on the End of Term Project.
BROOKE GLADSTONE: Coming up, a few words from the White House.
BOB GARFIELD: This is On the Media.