(Kevin Lamarque/REUTERS)

CHARLIE ROSE: “Should this be transparent in some way?”

PRESIDENT OBAMA: “It is transparent, that’s why we set up the FISA court.”

— exchange on the “Charlie Rose” show, June 17, 2013


“How do your entire senior staff know about this for months and months and it’s never mentioned to the president?”

— House Speaker John Boehner, interview on CNBC, June 20, 2013

Readers frequently ask how we decide what items to fact check. Ideally, we strive for topics of broad interest to readers, on subjects that are currently in the news. We don’t try to play gotcha, meaning that we understand that politicians from time to time make unintentional errors.

Of course, some readers may believe we sometimes fall short of these standards, focusing on what they might consider trivial or inconsequential matters. It’s a judgment call, as are the number of Pinocchios we award.

Sometimes it is equally important what we choose not to fact check.

In this column, we are going to do something unusual: We are going to explain why we passed on two potential fact checks, even though each might have yielded many Pinocchios. One concerns a quote by President Obama, which earned him a dreaded “Pants on Fire” from our esteemed colleagues at PolitiFact; the other is a statement on the IRS scandal by House Speaker John Boehner.

Obama and the ‘transparent’ court

During an interview with Charlie Rose, Obama appeared to claim that the secret Foreign Intelligence Surveillance Court is “transparent.” The statement came in the midst of a complex exchange about the recent National Security Agency revelations that is worth reprinting in full.

ROSE: So I hear you saying I have no problem with what NSA has been doing.
OBAMA: Well, let me finish, because I don’t. So what happens is then the FBI -- if, in fact it now wants to get content, if, in fact, it wants to start tapping that phone -- it’s got to go to the FISA court with probable cause and ask for a warrant.
ROSE: But has FISA court turned down any request?
OBAMA: Because -- first of all, Charlie, the number of requests are surprisingly small, number one. Number two -- folks don’t go with a query unless they’ve got a pretty good suspicion.
ROSE: Should this be transparent in some way?
OBAMA: It is transparent, that’s why we set up the FISA court. The whole point of my concern before I was president -- because some people say well, Obama was this raving liberal before, now he’s Dick Cheney. Dick Cheney sometimes says, “Yes, you know, he took it all, lock stock and barrel.” My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism but rather are we setting up a system of checks and balances?
So, on this telephone program you have a federal court with independent federal judges overseeing the entire program and you’ve got Congress overseeing the program. Not just the intelligence committee, not just the judiciary committee but all of Congress had available to it before the last reauthorization exactly how this program works.

Charlie Rose is an excellent interviewer, but unfortunately he never followed up to ask the president what he meant by “transparent.” From our reading, it appears as if Obama is using the phrase “transparent” to mean there is “a system of checks and balances.” In other words, this is a sensitive area and records are available to a select group of trustworthy people.

“While the details of the day-to-day work of the FISC is necessarily classified, it operates pursuant to public statute,” a senior administration official explained. “The FISC also receives regular reports on the conduct of both disclosed programs, providing more rigorous oversight than was in place before. Congress also receives these reports, and we have also increased the briefings we do for the Hill on our activities and have given them access to information about the FISC’s activities. And the DNI [Director of National Intelligence] has recently released lots of information in recent weeks on how the data is collected and can be used.”

Okay, this is a pretty expansive definition of “transparent” and PolitiFact had every right to say Obama’s comment was absurd on its face.

“While transparency is a form of oversight, having oversight does not make a thing transparent,” said Jim Harper, director of information policy studies at the CATO Institute. “These surveillance programs seem to have fallen far out of step with public values under non-transparent, secret oversight. Is the administration joining the intelligence community in bending the meanings of words? It’s not quite ‘War is peace. Freedom is slavery.’ But ‘secret oversight is transparency’ comes off a little Orwellian.”

We certainly could have used the quote to write a column to explore the inner workings of the court. But in the end we thought the exchange was too confusing to warrant the Four-Pinocchio treatment, even after PolitiFact made its ruling. That’s because Obama appeared to be avoiding the question rather than directly answering it. It is not even quite clear whether Obama is saying the court itself is transparent, or something else.

Kenneth Bunting, executive director of the National Freedom of Information Coalition, said that Obama was “more imprecise than dishonest…Basically what Obama did was a little sidestep, and Charlie never came back to it at all.”

Politicians sidestep uncomfortable questions all the time. Bunting pointed us to the classic song “The Sidestep,” from the musical “The Best Little Whorehouse in Texas,”sung after the governor skillfully avoids reporters’ questions.

Boehner and the IRS probe

In this case, the House Speaker made three apparently incorrect comments during the course of an interview on CNBC. Here is the relevant part of the transcript, with the questionable passages highlighted.

MARIA BARTIROMO: What about the IRS? A lot of people are upset, this targeting of groups that they don’t agree with, their politics. You said recently it’s inconceivable the president did not know about the IRS targeting conservative groups. Do you still believe that with the evidence unfolding?
BOEHNER: No, I — how do your entire senior staff know about this for months and months and it’s never mentioned to the president? It wouldn’t happen in my operation,that’s why I think it’s inconceivable. We -- our job is to get to the truth. It’s clear that this didn’t start with a group of rogue agents in Cincinnati. It’s pretty clear now, more evidence coming out that Washington did in fact know about it.
Senior Treasury officials have now admitted that they knew about this problem over a year ago. Why weren’t we notified? Why wasn’t corrective action taken? The president and the administration doing everything they can to block access to witnesses -- to shut down and not turn over documents. If they want to get this out of the way and clean this mess up, they need to cooperate with the Congress to provide the documents and the witnesses so that we have a clear understanding of what happened and who’s responsible.

This part of the interview never aired but CNBC did release a full transcript, which makes it fair game for fact checking.

The problem in this case is that the day before the interview, we had just given Three Pinocchios to Rep. Mike Rogers (R-Mich.) for making similar statements about when the White House staff knew about the IRS targeting of conservative groups. (It was three weeks, not “months and months.”) Boehner spokesman Brendan Buck conceded that Boehner’s remarks were “overstated.”

So we were reluctant to flog the same horse twice in the same week. The rest of Boehner’s comments were a bit too obscure. For instance, the reference to blocking access to witnesses apparently was intended to refer to something broader — not just the IRS probe, but other congressional investigations such as the inquiry into the Benghazi attack.

It might have made a worthy fact check. But we chose to take a pass.

Readers are welcome to comment on whether we blew it in either case.

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