NSA head James Clapper testifying, forgetting, speaking in code, misleading or lying. Something. Whatever.
The Obama Administration not only lies, but encourages and rewards lying. This is an inescapable conclusion. The saga of James Clapper’s perjury before Congress is a perfect, and depressing example.
At a March 2013 Senate hearing, Senator Ron Wyden, prompted by the leaks of classified information through Edward Snowdon, asked head of the NSA James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
“No, sir,” Clapper replied. “Not wittingly.”
That means, by any assessment, “If we do, it’s not intentional.” That was a lie. Clapper knew it was false. Wyden later said that he had sent his question to Clapper’s office a day before the hearing, and after the hearing had given Clapper’s office a chance to correct the misstatement after the hearing, but it did not. In June, the nation learned that the agency was routinely collecting data on the phone calls of millions of Americans. (This was the program just declared illegal by a federal court.)
NOTE: The original post erroneously attributed the decision to the Supreme Court. It hasn’t heard the case yet. That was a bad and careless mistake, and I apologize for it. Nothing like not checking your own links, Jack.
The government, including Clapper, has now attempted a dizzying array of rationalizations, excuses and obfuscations to avoid the unavoidable conclusion that Clapper lied to Congress while under oath, that he should be prosecuted, or at very least be fired by that leader of the Most Transparent Administration in History That Somehow Manages To Lie every Time A Mouth Open, Barack Obama. Even by the standards of this sorry administration, it’s an ugly journey into the cold heart of an untrustworthy government.
First, Harry Reid, then Senate Majority Leader, added to his credentials as political swine by arguing that it wasn’t a lie because the senators knew they were being lied to. “For senators to complain that they didn’t know this was happening, we had many, many meetings that have been both classified and unclassified that members have been invited to,” Reid said. “They shouldn’t come and say, ‘I wasn’t aware of this,’ because they’ve had every opportunity.”
Wrong, Casino Breath. A witness testifying under oath is testifying before the entire nation, the public, citizens, voters. If he lies, he lies to them. Only an utter, conscienceless villain like Reid would have the brass to make such an outrageous statement.
Michael V. Hayden, the former director of both the NSA and the CIA., defended Clapper by saying Senator Wyden’s question was “unfair.” “There’s not another country in the world where that question would have been asked and answered in a public session,” he said. To which the answer is, “So what?” This is the U.S.A, not China. The question was asked, the public has a right to know, and if Clapper thought he had a duty not to answer, his only option was to say that the question involved classified information and he refused to respond to it. Lying under oath is not an option, or wouldn’t be, in an administration that valued accountability, honesty, and the truth.
Clapper’s first attempt to deny his lie, which is itself lying, was by claiming he said something completely different, a favorite trick of his boss, the President.
In a National Journal interview to “clarify” his remarks, Clapper said, apparently with a straight face,
“What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that.”
That’s not what he had said though. It’s not even what he implied. That wasn’t going to fly, so Clapper tried again. In a June 2013 interview with NBC, Clapper “explained” his lie by saying that he gave“the least untruthful” answer he could give. What? In what universe is that a defense? “I used the least dishonest lie I could think of” ? Who writes his dialogue, Bill Clinton?
Also in 2013, NSA’s general counsel, Rajesh De, made a speech in which he purported to debunk “myths” that “the NSA is spying on Americans at home and abroad with questionable or no legal basis.” Deceit! It was spying, but the NSA thought there was a legal basis (the basis that the federal court just rejected). De, meanwhile, carefully “neglected” to mention that the collection of phone data on Americans wasn’t a “myth.”
Naturally, Eric Holder’s shamefully politicized Justice Department refused to do its job (if Clapper’s agency had been secretly spying on black citizens, Holder would have turned into Inspector Javert) despite Republican demands that Clapper be held to account. “Congressional oversight depends on truthful testimony – witnesses cannot be allowed to lie to Congress,” wrote representatives James Sensenbrenner, Darrell Issa, Trent Franks, Raul Labrador, Ted Poe, Trey Gowdy and Blake Farenthold at the end of 2013, citing “Director Clapper’s willful lie under oath.” They are entirely, completely correct, and shame on Democrats for not joining them. Nevertheless, nothing happened except more spinning, bobbing, weaving, and lying from the Obama minions.
Clapper was not just allowed to keep his job, he was tasked by the President to help oversee reforms of the same illegal program that he helped run and lied to Congress about! When the demands regarding Clapper’s perjury refused to dissipate, National Intelligence general counsel Robert Litt wrote a letter to the New York Times arguing that “[a]s a witness to the relevant events and a participant in them, I know that allegation [of perjury] is not true.” He claimed that Clapper misunderstood Senator Wyden’s question—you know, because “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” is really complicated—and then could not correct his mistake “because the program involved was classified.”
This explanation, you will notice, was at odds with Clapper’s own explanation that he did understand, and intentionally misled the Committee.
Wait, there’s more!
Last week, Litt took another crack at an explanation for Clapper’s falsehood, conveniently ignoring what he wrote to the Times. (Have I ever mentioned that it is unethical for lawyers to lie?) In the Nixon years, the line was “that statement is now inoperable.” The operable statement, according to Litt, was now this (emphasis mine):
“It was perfectly clear that he had absolutely forgotten the existence of the 215 program. . . . We all make mistakes.”
Wait, what??? The head of the NSA had forgotten about one of his agency’s massive surveillance programs? If true, that alone would justify firing Clapper. Of course, the fact that it has taken two years for this to be the agreed upon justification for the false answer he gave under oath also proved that for a spy agency, this one isn’t too swift. Nobody believes Litt’s latest spin, and nobody should.
His conduct is going into the new government lawyer ethics program I’m preparing for the D.C. Bar, however.
– – –
As a post script, I want to salute Prof. Turley and his blog for following and properly condemning this episode. (Conservatives call Turley a liberal, by the way.) The news media isn’t doing its job informing the public about the depths of the deception at the heart of our government, so bloggers like Turley, who has a wide readership and a national reputation, are critical. Fortunately Hillary Clinton will be the next President, so we can count on transparency, honesty, candor and accountability to once again be demanded of and delivered by our public servants.
I’m joking!
_________________________
Facts: Res Ipsa Loquitur 1, 2; The Guardian 1, 2, New York Times
Ethics Alarms 
Too bad you felt compelled to add the “I’m joking.” I thought the ending was tremendous. But I’ll defer to your knowledge of your commentariat.
It was more a matter of some of my newer commentariat not knowing me. I have friends who would not know that was a joke, if it wasn’t me saying it. I am sure there are lots of Clinton enablers who think she never lies.
Jack, the Supreme Court has not weighed in on this yet. It was the 2nd Circuit Court of Appeals that invalidated the program, and not because it was unconstitutional, but because they said the Patriot Act did not authorize the program.
SCOTUS could still reverse that decision if they grant cert to an appeal. Also, the ruling was by a three judge panel, so they could reconsider en banc, I reckon.
Something about raising a strawman to defend an outright lie really galls me. I would adjudge Clapper a Fick because of it.
UGH. That’s a terrible mistake, and thanks, I will fix it. The damn post had so many references that I was getting punchy. I knew I needed to check it one more time. Thanks, Glenn.
Deceit! It was spying, but the NSA thought there was a legal basis (the basis that SCOTUS just debunked for good.)
Is this part of the same mistake?
Yes, and thanks. I fixed that one too.
I’m such an idiot sometimes.
Who is Inspector Jaubert? Do you mean Inspector Javert?
The NSA has way more power than Congress and the Executive branch combined. These rationalizations were just an attempt to stay alive.
Bryce “The Hyena” Jaubert, an (I thought) infamous detective at Scotland Yard from 1926 to 1931. Jaubert was known for his relentless harassment of suspects, in some cases breaking into their houses and sitting by their bedsides to greet them when they awoke. Though his tactics drew many complaints, officials at the Yard could not dismiss him. One reason was his capture of “Little Jack,” a Jack the Ripper copycat who briefly terrorized Lincolnshire for two months in 1927 by imitating the Victorian serial killer’s MO on 4 alcoholic milkmen. The other was his marriage to a former mistress of the Duke of York, who was known to have the goods on the royal.
Jaubert died horribly when he choked on a hard-boiled egg at a pub in Canterbury in August of 1931, and nobody in the crowded establishment lifted a finger to help him. This inspired the Music Hall song, “Is That An Egg In Your Throat Or Are You All Choked Up Over Me?” It is briefly heard in the background of a scene in “The Lavender Hill Gang” while Alec Guinness eats an egg in a pub.
Actually, I wrote the wrong name because I was in a rush. Thanks.
Hysterical — I bet you are great at party games!
I am, in fact, but nobody ever invites me to parties.
Am I the only one who notes the striking similarity between the sagas of James Clapper and John Brennan? It’s like déja vu all over again. Of course, it makes sense. Heads of spy agencies are duty-bound to lie unconvincingly to their bosses. I think it’s in the manual somewhere.
Hmmm. There’s one aspect of this that has me thinking.
I’m in front of Congress in an open, public session. I’m asked a question whose answer is, in fact, classified (and I KNOW this to be the case). How DO I answer?
I think I would seriously need to consult legal council. Based on my own limited knowledge of the relevant law, I think I’d have to refuse to answer on the basis of Self-Incrimination–and THAT would send a VERY VERY different message.
I mean, if someone else asks such a thing, they get a lie or a deflection. I’m duty-bound to keep some things I know a secret. But this is Congress and there’s no potential of a Contempt of Congress charge associated with me lying to one of you guys.
There may be (but probably not) a Separation of Powers issue. The existence of classified information derives from Executive Order, not Federal Law. If my secret-keeping is on behalf of the President and one of the President’s agencies, then I am acting as an agent of the Executive Branch and I’m not sure whether or not Congress CAN compel me to reveal information to them. (And again, IANAL, I admit I’m probably wrong on this.)
–Dwayne
1. That’s why the NSA was sent the question in advance. If the question wasn’t flagged, it means a decision was meant to mislead Congress.
2. A lawyer is placed in the same situation when a judge asks at the bench, “Is your client guilty?” Monroe Freedman argued that it was ethical for a lawyer to lie and say “no.” Freedman (who died recently, and was a great legal ethicist) was wrong. You can’t say yes or no. You have to say, “I can’t answer that, your Honor.” Or “That’s what we’re here to find out, your honor”—that’s my favorite.
What would be wrong with “I’m sorry, Senator, that’s classified”?
It kind of answers the question. If the NSA isn’t doing it, the NSA can say NO without qualms. If they are and it’s illegal or secret, they can’t say yes. That’s why the excuse “It’s an unfair question” is used.
“I can neither confirm nor deny” can work, but only if it’s applied consistently enough that it doesn’t signal the true answer.
1) I had forgotten about the question being sent in advance, and yes, that definitely does change the situation.
2) That works in a courtroom since the basic question of “Is the defendant on trial?” is not a secret that needs to be kept. As you’ve written below, you have to avoid answering the question by not answering it.
I’ve actually been in this situation once–sort of. During a security audit of a classified IT system, the auditor (from NSA, no less) asks me a bunch of technical questions about our servers. It then swerved into this exchange:
(I paraphrase. This was more than 15 years ago now.)
Him: And what does the program running on this server do?
Me: (pause) I . . . don’t think I can tell you that.
Him: (laughs) [To one of my supervisors in the room:] Please tell this guy that I’m cleared to know what his system does.
Me: I’m sure you probably are. But I’m just a contractor, and not in a position to make that call. If you really need an answer to that question, you need to ask [name of another supervisor]. But until I’m given the okay from a government employee, I’m not going to discuss this.
Other supervisor in the room: Oh, wait, this is the [name of program] system? Yeah, Dwayne’s right. You don’t have Need-to-Know on that.
And we moved on. But that was a quick decision I made to push back on that, and I’m glad my “Ethics Alarms” were in good working order in that moment.
–Dwayne
Leaving aside the shock headline ‘Politician / Senior member of Executive Branch tells lies’, there is a strategic question I’d like to hear views on.
Intelligence services operate on a spectrum. At one end, they are not allowed to collect any information about anybody under any circumstances, at the other they have an absolute right to collect and retain any information from any source about anybody. Clearly neither of these is acceptable, the issue is, where should the legislature position them. As a layman I am reduced to taking an ill-informed view but I do get the feeling that, in both the US and the UK, we err on the side of making life easier for the bad guys than it should be.
Any better-informed views?
The issue was NSA wrongdoing, and Congress’s duty of oversight. This is why the fact that the question was provided beforehand is important. That is done so the NSA can say—“this gets into classified areas. Let’s have that discussion behind closed doors, OK?” If they agree to be asked the question in an open hearing, lying is not an option.
Intelligence operations are still bound by the Constitution. It’s as simple as that.
I ask you to trust me that I’m “better-informed” to the level where I’m not permitted to discuss the details.
No, we do NOT “err on the side of making life easier for the bad guys”.
But there is a clear legal differentiator, which all involved parties respect, where information about American citizens is strictly the domain of Law Enforcement and NOT Intelligence. That said, there IS overlap whenever foreign nationals and American citizens interact with each other.
–Dwayne
Thanks Dwayne. I do accept that you know better (not a very high bar, that). Perhaps you can comment on a specific I had in mind, a problem of circularity in respect of storing data only where there is probable cause…
1. A suspect is identified
2. To confirm (or not) his guilt and to identify accomplices if any, access to his history of telephone use has great potential value but…
3. Unless the relevant data (preferably limited to meta-data) is retained and available for analysis this is impossible
4. Clearly, the data would have be retained during a period when the suspect was unidentified and presumed innocent which implies
5. Retaining all of the data for all (predominantly innocent) telephone users
It’s a tough problem. In my view, this is a price worth paying with the crucial proviso that access the data is under the control of the courts.
In a case like you’re describing, it’s the phone company that is storing the data on “all (predominantly innocent) telephone users” and the law enforcement agency issues a subpoena for the data relevant to that suspect.
If classified sources are involved at all, they are used to get to step 1 and identify the suspect (or other key details). The reason? You never use classified data in a courtroom as evidence in a prosecution, because then you have to reveal the source and allow cross-examination. Instead, you build a case entirely with evidence that you CAN take to court–and use the classified data as an “answer key” to help focus the investigation.
–Dwayne
Dwayne
Thanks. Can you please comment on the legal position of the phone companies?
1. Do they have a legal obligation to retain records for any given period?
2. Given the concerted view of ‘progressives’ re Capitalism, how can they get away with this flagrant breach of the right to privacy?
This statement sent me into therapy for at least a week: In a June 2013 interview with NBC, Clapper “explained” his lie by saying that he gave“the least untruthful” answer he could give. I am still trying to wrap my head around that one. “Least untruthful” . . . Is that the same as most truthful? Woops. There goes another synapse.
jvb
“It’s not the worst thing.” In fact, “It’s the least worst thing.” That almost warrants being a variant #22A!
–Dwayne
I’m not sure which aspect is more repugnant; the head of a major (and once respectable) intelligence agency lying blatantly under oath to Congress… or the pathetic attempts by Clapper’s minions- abetted by the top Senate Democrat- to excuse his criminality. That Obama has likewise upheld him by deed is not even surprising anymore. These kind of lies, crimes and actions worthy of a communist regime have become the expected fare. Is there now any bureau, department or agency under the executive branch that is not infested with deceit and corruption? THIS is why character in the chief executive is the most vital attribute. When you place someone in the top office who is unprincipled and dedicated to an agenda destructive of the nation he’s sworn to serve, it only follows that his appointed lieutenants will reflect his own precepts. God help us.
‘THIS is why character in the chief executive is the most vital attribute.’
Unfortunately, character scarcely enters the contest at election (or any other) time – the will of the people runs more towards…
1. Free money
2. Slogans e.g. ‘Yes we can!’
God help America indeed. I hope but do not expect to live to see the greatest country in history save itself from catastrophe.