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If You Think You Had a Bad Day on Friday…

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Monday, July 29, 2013 at 6:11 AM

. . . here is State Department spokeswoman Jen Psaki explaining how the administration, under legal obligation to cut off aid to Egypt if there has been coup in that country, is under no legal obligation to determine whether there has been a coup:

QUESTION: Okay. So, can you explain clearly, with clarity, the Administration decision, announcement yesterday on Egypt and the non-coup coup designation?

MS. PSAKI: I can, but let’s see. We believe that the continued provision of assistance to Egypt, consistent with our law, is important to our goal of advancing a responsible transition to democratic governance, and is consistent with our national security interests.

As you all know and we’ve all talked about, Egypt serves as a stabilizing pillar of regional peace and security, and the United States has a national security interest in a stable and successful democratic transition in Egypt. The law does not require us to make a formal determination – that is a review that we have undergone – as to whether a coup took place, and it is not in our national interest to make such a determination. So we will work with Congress to determine how best to continue assistance to Egypt in a manner that encourages Egypt’s interim government to quickly and responsibly transition back to a stable, democratic, civilian-led, and inclusive government.

QUESTION: Okay. Can you explain to me, or to all of us, how it took this crack team of warriors three and a half weeks to come up with a determination that essentially sounds like something that Sergeant Schultz would have said on “Hogan’s Heroes,” or that we might all know as being the motto that is underneath pictures of three monkeys covering their ears, mouth, and –

MS. PSAKI: I am not a big “Hogan’s Heroes” fan. (Laughter.) But –

QUESTION: Yeah. Well, if you don’t get the cultural reference, it’s, “I know nothing; I see nothing,” and –

MS. PSAKI: I understood the monkey reference.

QUESTION: – the monkeys – you got that one?

MS. PSAKI: I just wanted to make sure that on Hogan’s Heroes I wasn’t going to follow that analogy.

QUESTION: Okay. So how – it took three and a half weeks to come up with a decision that you’re going to ignore the law?

MS. PSAKI: It is not ignoring the law. It was a review of what is applicable under the law, abiding the law. We’re continuing to work with Congress. This is ongoing. Obviously, our relationship with Egypt and the aid we provide and decisions over that is an ongoing process. So today is not an end. As we’ve talked about quite a bit in here, certainly the circumstances that have happened on the ground are very complicated. And we wanted to take the time and do due diligence to review. But there’s no question that there’s a larger issue of our strategic interests here and our interests as it relates to regional peace and security.

QUESTION: Yeah, but has this ever been done – are you aware – surely the building is aware – if you have ever done this before?

MS. PSAKI: Well, I have not –

QUESTION: Since the law was enacted, can you name one time that you’ve chosen to basically ignore it? And also, I still didn’t hear any answer to the question as to why did it take three weeks to come up with this – come up with a determination that you’re not going to – that you’re going to apply the law in some cases and not others, and this is a case that you’re not going to apply it?

MS. PSAKI: Well, I think that the American people would be appreciative of the fact that we took the time to evaluate, and what is applicable under the law, and take into account our important national security interests here. I’m not a historian, as we all know, and there’s a lot going on here, so I certainly haven’t reviewed historical references. But –

QUESTION: Well, is there a precedent for this? Do you know?

MS. PSAKI: I don’t have any historical references to point you to. But we’re obviously evaluating this as a specific situation.

QUESTION: Okay. Is your understanding of – that when you use the phrase “rule of law,” do you understand that to mean that you apply the law consistently? Like, when you tell or call on another government to respect the rule of law, do you understand that to mean that you – that you’re calling on them to apply the law consistently and not selectively?

MS. PSAKI: Well, when we have used rule of law, most commonly, as you know, we use it as it applies to giving people proper charges and evaluating circumstances like arrests.

QUESTION: Oh, no, I’m talking about the – just the – no, not in terms of a criminal defendant.

MS. PSAKI: Mm-hmm.

QUESTION: I’m talking about in terms of a government playing by its own rules.

MS. PSAKI: Well, Matt, that is why we reviewed the law and we – our legal team reviewed – undertook a review.

QUESTION: But this –

MS. PSAKI: And this is an ongoing process.

QUESTION: But what you reviewed was the actual – you didn’t review the events that happened in Egypt. You reviewed the law and decided that you didn’t have to – and came to this conclusion, which is mind-boggling, I think, that you don’t have to use it.

MS. PSAKI: It’s not that we don’t have to use it; it’s we don’t need to determine – we don’t need to make a public declaration about whether this was a coup or not. That is what was determined.

Mm-hmm.

QUESTION: Jen, how is it that in deciding that you don’t need to make such a determination, you are not flouting the spirit of the law?

MS. PSAKI: Well, given that our legal team was an important part of this process, certainly I would refute any notion that we were flouting the law. But it is important here –

QUESTION: I didn’t say the law; I said the spirit of the law.

MS. PSAKI: Well, I would refute that notion. Our legal team was an important part of this process. But the context of this is certainly very important here, which is our – the stabilizing pillar that is Egypt and the important role it plays in regional peace and stability.

QUESTION: The reason I asked about spirit as opposed to the letter is that, like you, I’ve read the very short portions of the law.

MS. PSAKI: Mm-hmm.

QUESTION: And it does not – and you’re right, it does not oblige –

MS. PSAKI: Mm-hmm.

QUESTION: – an administration to make a determination. But it does seem that the spirit of the law and the way in which it has been previously applied was that it was implicit that an administration should make a determination as to whether a military coup occurred and that therefore, it should then decide to cut off aid. So I can see how in a narrow, legalistic manner you can argue that you have obeyed the letter of the law because there is no obligation –

MS. PSAKI: Mm-hmm.

QUESTION: – to make a determination. I do not see, nor have you explained, how what you have decided is in keeping with the spirit of the law.

MS. PSAKI: Well, the spirit of the law is a very theoretical question. I will say that there’s also an important context we have talked about here in the millions of Egyptians who had legitimate grievances, who expressed their concern with President Morsy’s non-inclusive form of governance and demanded a new, more inclusive, representative and responsive government. So that is an important context here too. What I was trying to answer for you is the context of how this decision was made. It’s not just looking at a paragraph. Certainly, abiding by our legal obligations is always a priority to the United States, and always something we’re focused on. But there is a greater context here in terms of our national security interests, in terms of the millions of people who’ve expressed their grievances in Egypt.

QUESTION: But isn’t – I mean, sorry, but isn’t abiding by your legal obligations not merely a priority, but paramount?

MS. PSAKI: Of course it is.

QUESTION: Okay, so then –

MS. PSAKI: And we have. And they’ve reviewed it.

QUESTION: – right, but what I still do not understand, and I think Matt’s line of questioning is an understandable line of questioning, which is –

MS. PSAKI: Certainly wasn’t suggesting it wasn’t. I answered the question.

QUESTION: Well, but you haven’t explained why this is in line with the spirit of the law, which clearly was crafted so as to require a U.S. Government to cut off assistance to another country’s government when its democratically elected leader was ousted in a military coup or in a coup in which the military played a decisive role. And that clearly was the spirit of the law. Why should you decide in this instance that you will not abide by what was clearly the congressional intent?

MS. PSAKI: Well, first let me say that obviously we are continuing to consult with Congress, and have on this specific decision as well. What I was trying to provide in answer to your question was the important context which is applicable to the spirit of what we’re trying to accomplish here, which is a stable, productive Egypt. Obviously, our national security interests are at play here. The voices of the Egyptian people are at play here. Those are all factors that go into this.

QUESTION: There’s a reason I’m interested in this, and I’m less interested in the spirit of what you’re trying to do here than I am in the letter and the spirit of the law. There are other ways that you could achieve what you’re trying to achieve in Egypt. You could have gotten Congress to enact waiver authority so that you could issue a waiver. You could have gotten Congress to change the law in some other manner so as to provide an exception. You could have gotten Congress to say, well, it doesn’t actually apply in the case of Egypt. But when you have instead chosen to do is to interpret the law in a manner that is, as Matt suggested, rather inconsistent with the way in which it has been applied in the past, where you have looked at the circumstances in a given country and then made a determination, and in certain cases it was a determination that a military coup had occurred and you therefore cut off aid.

Why, in this case, should you decide that what has been the spirit and historical application of the law should not apply?

MS. PSAKI: Well, I think I’ve answered why this is a unique case. But I will also say that we of course recognize this is a complex situation. Our review is ongoing, as is our consultation with Congress. If there are additional steps that need to be taken to ensure that we can continue our assistance consistent with the law and in a manner that also advances U.S. national security interests, we will consider those. So it’s ongoing.

QUESTION: Why not – I mean, you will recall that when the President took the oath of office for a second time, back in 2009, the justification for his having done so was that it was out of an abundance of caution. Why would you not, out of an abundance of caution to ensure that you were in keeping not merely with the letter but also with the spirit and historical application of the law, have found – of U.S. law – have found another solution, one that was manifestly, incontestably legal, where you got Congress to change the law, for example?

MS. PSAKI: Well, we do feel this is legal. That’s why our lawyers reviewed it. We did take the time, spent a couple of weeks, as you know and as Matt also pointed out, reviewing this and evaluated, as I’ve mentioned, our national security interests, issues related to regional stability, as well as the importance of the voices of the Egyptian people. And this was the determination that was made. I don’t have a further readout for you of those discussions.

QUESTION: Jen –

QUESTION: The problem is that you didn’t review what happened in Egypt; you reviewed how you could – when – excuse me – you reviewed how you could essentially abdicate the responsibility that was placed on you by this law in the first place. And I think that as I and others have suggested since July 3rd, the question of this review was always how are you going to be able to avoid completing it, or how are you going to be able to avoid enacting it. And I think it’s – it appears to be a very, very clumsily constructed legal copout to simply say that you don’t have to do it. There are no exceptions in the law, as it’s written, like the ones that you mentioned: broader national security interests. There’s nothing in that legislation that says anything about, well, if 20 million people are in the streets protesting, then it doesn’t count. You, for the first time – “you” meaning the government – for the first time since this law was passed, or presumably since the first time since you all stopped engineering coups on your own, and actually came out and overtly supported them –

MS. PSAKI: This is a very lengthy question.

QUESTION: – have decided that this law is no – doesn’t have to be applicable anymore.

MS. PSAKI: Let me just be –

QUESTION: This law is not universal; it doesn’t cover everything.

MS. PSAKI: Matt, I think there’s an important point here –

QUESTION: Is that correct?

MS. PSAKI: – so let me just try to make this important point.

QUESTION: You are (inaudible). Are you –

MS. PSAKI: The legal decision that was made was that we have reviewed and we do not need to make a public determination on whether or not a coup happened or not. Moving forward, we are consulting with Congress. Of course, our legal obligations are an important part of that, and believe me, from all sides. And as determinations need to be made or steps need to be taken, legislative steps, we will endeavor to take them. This is an ongoing process.

QUESTION: So what other provisions of the law are you going to just pick and choose to apply?

MS. PSAKI: Matt, I think I’ve answered. The reason the decision that was made –

QUESTION: Well, I still haven’t gotten an answer –

MS. PSAKI: – the announcement that it was –

QUESTION: – to why this took three weeks. This is something that could have been done on day one, day two.

MS. PSAKI: We wanted to do due diligence and take the time to review here. But this is ongoing. It’s not the end; this is a step in the process.

QUESTION: (Off-mike.)

QUESTION: Jen, do you –

MS. PSAKI: Let’s just do one at a time, Said. So just let Jo and then I’ll go to you next if that works.

QUESTION: Do you concede that by utilizing what appears to be a loophole that your lawyers have found in the law, that the reputation and the influence that the United States has in other countries is thereby tarnished? If you are going to pick and choose which situations you want to see as unique situations, and therefore not applicable to the law, therefore you don’t have to make a determination about whether there was a coup, a leader in any other country or a military in any other country could decide that if – could decide that they will go ahead with removing a legitimately elected president because there’s no longer this fear that the United States will cut off military and economic aid.

MS. PSAKI: Well, I’d first refute the notion this was a loophole. It was not. It was reviewed by our lawyers and determined that we did not make – need to make a decision or determination, a public determination about whether or not this was a coup. The second piece I would convey is that I don’t think it would come as a surprise to anyone that our own national security interests, issues related to regional stability, the voices of millions of people, are all factors. Every scenario is different, but we are continuing to review. We do not anticipate that we are going to make an evaluation here. That’s not what I’m suggesting, related to a coup or not. But we’re continuing to review our relationship as it relates to aid with Egypt, and that’s ongoing.

So I would convey that to anyone who has concerns about the announcement.

QUESTION: Have you made a private determination? You keep emphasizing that you do not believe that you are required to make a public determination. Have you made a private determination?

MS. PSAKI: I’m – it’s – the laws – this is related to our public determination. I don’t –

QUESTION: But have you made a private determination?

MS. PSAKI: I don’t have any more for you, Arshad –

QUESTION: Because the law –

MS. PSAKI: – on our private conversations.

QUESTION: – but the law doesn’t – just so you know, the law doesn’t say “public determination,” it says “determination.”

MS. PSAKI: Well –

QUESTION: So if you have a determination of any sort, then it seems to me one could plausibly argue you have not followed the law.

MS. PSAKI: Thank you for your legal analysis. We have determined that we do not need to make a determination about whether or not this was a coup.

QUESTION: Public or private?

MS. PSAKI: Yes.

QUESTION: (Off-mike) Senator John McCain said yesterday that there is no national security waiver in this law. Am I confused here? Because you keep saying that it’s in our national security interests not to make a determination here.

MS. PSAKI: So I think there’s some confusion about what we have announced. We’ve announced that our legal – we have determined legally we do not need to make a determination as to whether it is a coup or not a coup. Beyond that, we’re going to continue to work with Congress to abide by our legal obligations. If steps are needed, we will work with Congress to take those steps.

QUESTION: Does that mean that a determination could be made later?

MS. PSAKI: We’re not – that is not our plan, no.

QUESTION: So is the book closed on this determination?

QUESTION: (Off-mike.)

MS. PSAKI: Well, we’re continuing to review our relationship, and in any country, of course. So I’m not going to look into a crystal ball with that, but of course we’re continuing to review. We’re not – there’s not a plan to make a determination as it relates to a coup.

QUESTION: But you wouldn’t rule that out? Right? It could happen?

MS. PSAKI: I’m not – it is not our plan, so –

QUESTION: So there conceivably could be some time in the future, in a week or two or so on, you come back and say it is a coup?

MS. PSAKI: No. That’s not –

QUESTION: So that –

MS. PSAKI: I’m actually saying the opposite of that.

QUESTION: The book is closed on that definition? It is not a coup?

MS. PSAKI: We have determined we’re not going to make a determination, so I haven’t said one way or the other.

QUESTION: You have determined that you –

QUESTION: (Off-mike.)

MS. PSAKI: Well, Matt, it’s a complicated –

QUESTION: We have determined that we’re not going to make –

MS. PSAKI: – situation in an important strategic relationship.

QUESTION: How is it the Administration believes they can base a policy on pretending that something didn’t happen? (Laughter.)

MS. PSAKI: Matt, our policy –

QUESTION: How does that work?

MS. PSAKI: Our policy is based on our national security interests –

QUESTION: Your policy –

MS. PSAKI: – and regional stability and many complicated factors that have gone on the ground here. We’re not looking at this a black-and-white case.

QUESTION: Jen –

QUESTION: Just a point of clarification.

MS. PSAKI: Mm-hmm.

QUESTION: So national security interests influenced a legal decision in this case?

MS. PSAKI: Our national security interests influence our policy as it relates to aid with Egypt. As you all know –

QUESTION: No, no, but for the legal decision.

MS. PSAKI: – if a determination was made that this was a coup, then that would be a certain trigger. But beyond that, we reviewed the legal obligations and determined we did not need to make a determination one way or the other.

QUESTION: No. Sorry –

QUESTION: Every time a military removes a democratically elected leader around the world and you deem that this is in America’s national security interest, you’re not going to call it a coup?

MS. PSAKI: Well, we’re talking about one specific case, and that is what is –

QUESTION: But it sets a precedent.

MS. PSAKI: – what is happening in Egypt.

QUESTION: But it sets a precedent.

MS. PSAKI: We’re looking at each case. I’m not going to predict certain cases in the future. I’m talking about specifically Egypt and the events that have happened over the last couple of months and our evaluation as it relates to Egypt.

QUESTION: But it sets a precedent, and John McCain yesterday in Congress made very clear that this was not good for America’s reputation around the world if you start deciding that the law applies here and not there, and that does – I mean you can’t then go to other countries and tell them –

MS. PSAKI: The determination was made as to whether –

QUESTION: – that they have to apply the law.

MS. PSAKI: – we needed to make a determination on whether it’s a coup or not a coup. We’re continuing to work with Congress on abiding by our legal obligations. I am certain Senator McCain and conversations with him and others will be a big part of that.

QUESTION: But you just closed the book on that. I mean, what are you – continuing discussions with them on what? What are you discussing with them?

MS. PSAKI: On how – on our legal obligations –

QUESTION: On Egypt?

MS. PSAKI: – abiding by that moving forward.

QUESTION: And in this particular case? In Egypt’s case? You’re talking with them?

MS. PSAKI: Yes.

QUESTION: So what are you hoping – since you have already made – I’m a bit confused.

MS. PSAKI: That we can continue our assistance and that it’s consistent with the law.

QUESTION: So you are talking with them on the ways to continue assistance?

MS. PSAKI: Yeah.

QUESTION: Not whether it’s a coup or not?

MS. PSAKI: Correct.

QUESTION: That has been made?

QUESTION: But Jen, I feel as if I’m looking through the looking glass here, because you’re arguing that this building has decided that for national security interests, it doesn’t have to make a determination about whether it’s a coup. Two days ago, the Pentagon announced that it’s not sending four F-16s for which the Egyptians have already paid, but they’re not doing it except because they’re concerned about the situation on the ground. It’s a mixed message here. Is it a coup, or isn’t it?

MS. PSAKI: I did not – I don’t think it’s a mixed message. I think you’re combining a couple of things right now.

QUESTION: But this is all being done on an interagency process.

MS. PSAKI: Let me answer your question, and then we can continue discussing. The law does not require us to make a formal determination as to whether a coup took place. We evaluated the F-16s and determined in that specific case we didn’t – it was not appropriate to deliver those F-16s. We will continue to review. I have nothing to announce for you, no predictions to make for you, but that was a specific case. What I’m saying as it relates to national security is certainly that’s a factor as it relates to our overall relationship with Egypt, and the regional – the role in regional stability that Egypt plays. This is a complicated situation. That’s why there’s a complicated evaluation.

QUESTION: But given that the F-16s, I would assume, would not be used to drop warheads on the people who are protesting in Tahrir Square, doesn’t it, in a way, endanger U.S. regional security interests when you consider the ongoing instability that is flowing out of Syria, the ongoing concerns about issues inside Iraq, and the ongoing concerns about what Iran

may or may not be doing with its nuclear weapons program for Egypt’s military to not have those fighter jets for – to deal with these international issues?

MS. PSAKI: As you know, Roz, the –

QUESTION: It is problematic, and usually people would assume, as Arshad suggested earlier, that if you don’t send the weapons, which is the bulk of the $1.3 billion aid annually to Egypt, that you are, in fact, making this determination by your action.

MS. PSAKI: Well, I would caution you in reading into the F-16s decision as indicative of anything else. Obviously the Department of Defense made the initial announcement. It is under their purview. I’m certain that factors related to security were taken into account. I would point you to them on more specifics, and we will continue to evaluate.

QUESTION: But they specifically said – George Little specifically said on Wednesday this was because of the concerns that we have about the political situation in Cairo, full stop.

MS. PSAKI: Mm-hmm.

QUESTION: And so why is that not, in fact, a tacit admission that what happened three and a half weeks ago, in fact, was a coup?

MS. PSAKI: Because we’re making an evaluation case by case. That was the one case and one specific example I can point you to.

QUESTION: It seems like that sounds like you’re saying to the Egyptians we’ll parse out aid as we see we need to influence you with it.

MS. PSAKI: No. We’ve been very clear, and I’ll state it again here, that we don’t think it’s in our interest to cut off aid to Egypt. There was a decision made specifically about the F-16s.

QUESTION: But you are saying it will be on a case-by-case basis from now on?

MS. PSAKI: Well, we’re – no, I’m not saying that, and I apologize if that was what you thought I was conveying. We’re continuing to review. That means working with Congress, that means continuing to review moving forward. Obviously, this story is not done yet, so we’ll continue to review in the weeks and months ahead.

QUESTION: Could we have some more clarity about how you reached that determination? I mean, based on what? And if it’s not now, I mean, could you get back to us about how you reached –

MS. PSAKI: The legal determination?

QUESTION: Yeah, the legal determination that you don’t have to make a determination that it’s a coup, because it’s very opaque. I mean in the past, when there’s been a coup, you have cut aid, or you have found a legal way – very transparent legal way to continue giving aid to a specific country. For example, Pakistan after 2001, you get a waiver for the sort of so-called coup legislation. So why did you choose this path at this stage with Egypt?

MS. PSAKI: Well, again, we’re continuing to work with Congress on legislative steps that need to be taken, if they need to be taken. In terms of how we determine that we did need to make a determination – that is a bit of a mouthful, I will admit – I will – I’m sure I will – I am happy to check for you and see if there’s anything else specific to provide for you on that.

QUESTION: It certainly sounds like this review was focused on finding a way out of this – out of enforcing or acting in accordance with the spirit of the law, rather than on the actual facts on the ground and what happened. Is that correct?

MS. PSAKI: No. We are abiding by our legal obligations – has always been a very important factor here, as is our national interests and our national security.

QUESTION: Okay. So quite apart from the law, what do you call it when the military of a country overthrows the democratically elected president, takes him into custody, holds him incommunicado for weeks, and now comes up with – starts investigating charges that he was involved in a jail break and murder and that kind of thing? What – forget about the law. How would you describe that scenario?

MS. PSAKI: Well, we would say that there’s a need to move forward towards an inclusive process, and that we’re opposed to the arbitrary arrests, and that we’re focused on moving ahead. I’m not going to give it a one-word name. I don’t think there’s a need for that.

QUESTION: Well, maybe you could give it a two-word name with an apostrophe in the middle of it. Yeah? Coup d’etat?

MS. PSAKI: Well, if I come up with a good name for you, I’m happy to let you know.

QUESTION: Can you – can – I just don’t understand how – I mean, either say it was a coup or say it wasn’t a coup, but coming up with this – trying to avoid taking responsibility, it just seems – and avoid implementing what the will – what – the intent of what this law is supposed to be and supposed to do in terms of guiding foreign policy, I just don’t understand, one, how it took so long to come to this decision you were just going to ignore this, and two, what makes you think, as other people have asked, that this is not going to hurt your reputation, your image, your credibility abroad when you run – when you go around and tell other governments that they should respect the rule of law?

MS. PSAKI: Well, Matt, obviously this is a complicated situation. We’re taking each case, each situation case by case. We took the time to review and evaluate all of the factors here, our legal obligations, our national security interests, the impact on regional stability. I think that that’s a message that will be understood.

QUESTION: Really? If you can’t explain it to us, I don’t think you’re going be explain it – able to explain it to other people.

QUESTION: Take – Kim raises an interesting point, which is the Pakistan precedent, where after 9/11 the Bush Administration decided that it was important, in order to secure counterterrorism cooperation from Pakistan, to waive a number of laws, including the coup one, which had been applied to them. Why didn’t you choose that outcome, which might have been a cleaner outcome? Why didn’t you seek to get a legislative fix that would’ve allowed you to continue assistance to Egypt?

MS. PSAKI: Well, we don’t know if there would be legislative fixes needed or not. If there are needed, we’ll work with Congress on that. I’m not going to peel back the curtain on all the discussions that happened over the past couple of weeks. As we all know, there were many discussions – interagency the Secretary was involved with, many senior-level national security officials, and I’m certain that many options were discussed.

QUESTION: And who ultimately made the decision not to make a determination?

MS. PSAKI: Well, obviously, there’s a factor as it relates to the legal component, which our legal office here played a significant role in, and certainly this was discussed and agreed to through the interagency process.

QUESTION: But who decided? I mean, the buck stops somewhere. As Harry Truman said, it stopped with him. Does the buck stop with the President in this case, or with the Secretary, or with the acting legal advisor of the State Department, or who? Who made the decision?

MS. PSAKI: Well, I’m not going to read out who was where on what and all the players involved in this.

QUESTION: I’m not asking that. I’m asking who made the decision.

MS. PSAKI: This was agreed to by the national security team. Beyond that, I’m not going to – I don’t have anything.

QUESTION: Why are you afraid to say who made the decision?

MS. PSAKI: I’m not afraid of anything, Arshad. I’m just not – I’m not getting into more specifics than that for you.

QUESTION: What about wolves? (Laughter.)

MS. PSAKI: I don’t like wolves, but I’m not afraid of them. (Laughter.)

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