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11 June 2013

James Clapper: Liar

By Charles C W Cooke

By dint of a widespread preference for politeness, human beings tend to trip over themselves to find euphemisms for the word “lying.” The questionable among our public servants are charged with “misleading,” “hedging,” and “evading”; they are accused of disseminating “falsehoods,” and they are presumed guilty of “ambiguity” or of being “slippery” and “smooth.” For some reason, however, the L-word is off the table. This instinct is admirable, but its result is not always so. Sometimes, one needs to call a spade a spade.

During a Senate Intelligence Committee hearing on March 12 of this year, Ron Wyden asked Director of National Intelligence James Clapper a simple question: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

“No, sir,” Clapper shot back without a pause. “There are cases where they could inadvertently, perhaps, collect, but not wittingly.” Why so? Because “in the case of NSA and CIA, there are strictures against tracking American citizens in the United States for foreign intelligence purposes — and that’s what those agencies are set up to do.”

This message, an explanation to Congress of what the executive branch was up to, was crystal clear: Don’t worry, the NSA is not allowed to track Americans — and it’s not going to. The primary problem with this, as the revelations of last week have demonstrated, is that it was not true.

Defenders of Clapper’s performance point out that he said these things before the NSA obtained the warrant that enabled it to collect metadata from Verizon. But given Clapper’s blunt assertion that the government simply does not do what it turns out that the government very much does do, it is difficult to see how the timing is relevant. Because the NSA is set up as a foreign agency, Clapper added, “they do not engage in” domestic surveillance. Unless we are to believe that between the hearing and the approval of the NSA’s request three weeks later the director of national intelligence presided over a dramatic change in procedure, Clapper was lying.

There is a caveat here, of course, and one that Clapper’s apologists insist is crucial: While the primary role of outfits such as the CIA and the NSA is to investigate foreign threats, they are permitted to conduct surveillance within the United States if a Foreign Intelligence Surveillance Act (FISA) court approves the operation. Because the NSA got such approval, the argument goes, there was no untoward behavior. But this is not a particularly convincing defense. First, FISA approvals are intended to accommodate agencies’ need to track suspected foreign spies who are operating in the United States; they are not supposed to enable the NSA’s doing whatever it wishes within America’s borders. Second, the notion that the courts provide oversight is truly risible. As Mother Jones points out:

“The FISC [Foreign Intelligence Surveillance Court] has declined just 11 of the more than 33,900 surveillance requests made by the government in 33 years” — a rate of 0.03 percent. The sad truth is that FISA has become little more than a rubber stamp, effectively affording the NSA and CIA carte blanche.

The request at hand, made and approved just three weeks after Clapper’s denial, was to collect metadata on all cellphones running on the Verizon network. Even given the most generous interpretation, does this really tally with what Clapper claimed or with the rules by which the NSA is ostensibly governed? I think not.

Look, a defensive Clapper told National Journal last week, “what I said was, ‘the NSA does not voyeuristically pore through U.S. citizens’ e-mails.’ I stand by that.”

It’s good to be told that the NSA isn’t reading our e-mails. But actually, that wasn’t what Clapper “said” at all. This is Wyden’s full question:

Last summer the NSA director was at a conference and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, “ . . . the story that we have millions or hundreds of millions of dossiers on people is completely false.” The reason I’m asking the question is, having served on the committee now for a dozen years, I don’t really know what a dossier is in this context. So what I wanted to see is if you could give me a yes or no answer to the question: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

In response, remember, Clapper said, “No, sir.” Again, Wyden’s question stipulated “Any type of data at all.” He did not ask, “Does the NSA wiretap or read e-mails?” There is no good reason that Clapper should have imagined that this was the topic at hand.

Words matter. As Ben Wittes at The New Republic notes:

The government was using a particular section of FISA — known as Section 215 — as a way of accessing not just specific items about specific persons on a case-by-case basis, but also as a means to create giant datasets of telephony metadata that might later be queried on a case-by-case basis.

In other words, it was doing exactly what Ron Wyden implied that it was doing. Either Clapper was lying — responding in what he described disastrously to Andrea Mitchell on Sunday as the “least untruthful manner” available — or he is so out of touch and incompetent that he genuinely has no idea what is going on around him. Neither is comforting. For all his power, the director of national intelligence remains subordinate to the civilian power; that he saw fit to lie so casually in front of its representative body is devastating.

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