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An Open Letter to Neil Cavuto

I am writing -- as a friend -- to tell you how profoundly disappointed I was when you "cut (my) damn mic" on your Saturday show as I tried to explain why it is wrong and confused to "conflate" the IRS controversy with those involving NSA surveillance and DOJ leak investigations.
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Neil Cavuto

1211 Avenue of the Americas

New York, NY 10036

Dear Neil -

I am writing -- as a friend -- to tell you how profoundly disappointed I was when you "cut (my) damn mic" on your Saturday show as I tried to explain why it is wrong and confused to "conflate" the IRS controversy with those involving NSA surveillance and DOJ leak investigations.

Your position, apparently, is that unless I agreed with your thesis that these actions constitute parts of a larger grand-conspiracy by the Obama administration against the American people, I would not be permitted to speak. The problem, of course, is that the facts do not support your theory.

And since you denied your viewers the chance to hear why your grand conspiracy theory is half-baked, I will do so here.

Let's start with the fact that my position is not "liberal." It's simply factual, as many leading Republicans agree.

On Fox News Sunday, Bill Kristol made the exact same argument that I made when you "cut (my) mic." He argued that the IRS controversy must be distinguished from the NSA/Verizon matter as the latter involved lawful actions fully authorized by the courts and based on a showing that they were needed to keep the country safe.

House Speaker John Boehner seems to agree. While critical of the IRS matter, Speaker Boehner has vigorously defended the NSA surveillance program, has said that our civil liberties were "absolutely" being protected and has referred to the confessed leaker Edward Snowden as a "traitor." Congressman Mike Rogers, the Republican Chairman of the House Intelligence Committee, has also aggressively defended the NSA program as a crucial part of the effort to keep our country safe. Senator Lindsey Graham made the same point. Fox News' Brit Hume dismisses the criticisms of the NSA program as "misplaced hysteria" and said that there was no "abuse" whatsoever.

The president and both Democrats and Republicans on the Hill have pointed out that not only did this program follow the law -- laws passed with enthusiastic support of your Republican friends on Capitol Hill -- but the program is limited to the monitoring of U.S. metadata; the content of phone conversations cannot be accessed without a separate court order finding probable cause of a crime or connection to foreign intelligence or terrorism.

The differences between the NSA program, the IRS controversy, and the DOJ enforcement actions are so obvious that it's hard see how anyone to anyone remotely familiar with the basic facts could, in good faith, confuse and lump them all together, or in your words, "connect the dots."

In the case of the IRS, the selective scrutiny of some conservative groups was clearly wrong and unjustified (no argument from me on that) -- even if it does turn out to be true (as the recent documents from the House Oversight Committee seem to reveal) that the IRS policy was initiated by a Republican civil servant in the Cincinnati office for non-partisan reasons, and even if many of the groups were so involved in election-related activity that they shouldn't have qualified for the 501(c)(4) status in the first place. The law plainly requires that groups seeking this tax status not be involved in any election activity. In my view, many groups on both the political left and right should not have qualified for the tax status. Nevertheless, justice should be blind, and the IRS should never engage in selective enforcement, regardless of the circumstances. On that, I agree with the complaints of many conservatives as well as the president.

The DOJ enforcement actions against those involved in leaking classified information are yet an entirely different kettle of fish. In subpoenaing telephone toll records (incoming and outgoing telephone numbers and, again, not the content of any conversations) from Associated Press, the DOJ followed the law as it tried to identify who leaked the identity of an al Qaeda double agent in Yemen who was foiling a plot to blow up an airliner. You may not like the law that governed DOJ actions -- even though it's been supported by Republicans for years -- but you cannot argue that it's an administration "scandal" when the Justice Department is following the letter of the law. Also, leading Hill Republicans had repeatedly demanded that DOJ take a stronger enforcement against alleged leakers. That sure doesn't fit with your "conspiracy" narrative.

The case of Stephen Kim is also very different on both the law and policy. This case reportedly involves a protected source inside North Korea that was providing the U.S. government critical information about North Korea's nuclear ambitions. Public reports suggest this critical information was being leaked and potentially and dangerously exposing our source in North Korea. On that basis the Justice Department obtained what no one disputes was a fully lawful court order to monitor the emails of the suspected leaker. As I have said on television, including on your network, I have very strong concerns about the very questionable decision by prosecutors to cite Fox News reporter James Rosen (whom I also consider a friend) as a potential co-conspirator in order to facilitate the grant of the warrant from the court; I think that was very possibly an overreach. But the Justice Department has never said it had any intention whatsoever to bring any criminal action against Rosen and I don't think anyone questions the basic propriety of DOJ's effort to aggressively seek the source of the leak here especially not as the North Korean nuclear crisis continues to boil. Once again, leading Republicans strongly urged the Obama administration to go after these leaks.

These are the facts you would not allow me to share with your audience. Not because I was wrong -- in the few moments you allowed me to speak, you made no concrete challenge to the facts I offered. And you did nothing to correct any of the demonstrably wrong statements made by nearly every other (conservative) guest on the show.

For example, you didn't challenge the painfully inaccurate statements by Ben Stein and Charles Gasparino that the NSA program was evidence that we were living in a "police state." Webster's Dictionary defines a police state as "arbitrary exercise of power by police and especially secret police in place of regular operation of administrative and judicial organs of the government according to publicly known legal procedures." Is calling the legally authorized NSA program a "police state" really "factual" in your view? Even when both the Republican Speaker and Democratic president argue it's needed to protect national security and when there is independent supervision from a federal court? Even when nearly six in ten Americans feel it represents a reasonable balance of security and civil liberties? What purpose is served by allowing such sloppy, wrong and emotionally inflated charges to go unchallenged, or cutting the mic of the one dissenting guest that would challenge those inaccuracies and argue the uncontestable point that we need to look at each of these controversies on their own merits?

Similarly, both Ben Stein and Charles Payne appeared to claim that the NSA program authorized the government to listen to our phone calls and monitor our online activity and emails. There is no evidence whatsoever that NSA program allows Americans to be targeted and surveilled in this fashion -- a fact you simply ignored.

Amazingly, when I pointed out that there is no evidence of any of this, you claimed I was the one being obnoxious, that I wasn't dealing with facts and then dismissed any role on your part to referee basic facts, claiming that would be a "he-said, she-said." So I don't get it -- do you want to deal with the facts or not?

By failing to correct or challenge these wrong and confused utterances of your guests while interrupting me the moment I tried to set the record straight, you seemed more interested in constructing a partisan narrative, not having a real debate. I don't mind mixing it up on a political argument -- you and I have done so for nearly 15 years. But we were not talking about an electoral campaign here. This segment was (I thought) to be a serious argument about big, substantive issues -- the role of government, the challenge of terrorism, and privacy in a digital age. And we all lose if even serious conservatives like yourself aren't willing to have that debate on the merits, but would rather hide behind the most extreme rhetoric and unsupported, empty charges of lawless tyranny and police-state nonsense.

In my mind, the insistence on combining or conflating these different matters is a kind of paranoia akin to the unthinking, visceral compulsion by adversaries of the Obama administration to weave virtually every action big or small into a hazy conspiracy narrative that this president is somehow, someway secretly trying to take away our liberties. This is the kind of thinking that drove the "birther" movement and other fringe and extremist attacks against the President. I think that narrative is infantile and, at its core, represents the kind of naked, bitter partisanship I had thought you also rejected.

I don't know how you come to the view that rejecting this nonsense and insisting we look fairly at the facts before us is a partisan position. There is no common factual or policy thread linking these controversies together as serious thinkers on left and right seem to agree. As I point out, leading Republicans side with the Administration's actions in some of these cases. Will you be turning off their mics next?

Neil, you owe your viewers an apology, not the lame defense of your actions you made on Monday. I don't need one. They are the ones hurt here, not me.


Julian Epstein

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