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The Case against James Clapper: the Metadata Deception and the Smear of Ron Wyden

tech3At least one prominent member of the national security establishment, and a prominent legal blog, have come out in defense of Director of National Intelligence (DNI) James Clapper by attempting to smear Senator Ron Wyden.

This past March 12 at an open hearing of the Senate Select Committee on Intelligence, Wyden, Democrat from Oregon, asked Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper famously answered, “No sir…not wittingly.”

We now know, as Wyden knew then, that this was a lie. There have subsequently been calls for Clapper’s resignation.

After the Edward Snowden revelations, which included those of the telephony metadata collection program – which performs precisely the collection Wyden asked about and Clapper denied – Clapper’s most publicized attempt to address questions of his false testimony was with NBC’s Andrea Mitchell.

I thought, though in retrospect, I was asked [a] “when are you going to … stop beating your wife’ kind of question, which is … not answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful, manner by saying, ‘No.’”

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Director of National Intelligence James Clapper

In this brief explanation, Clapper managed to muddy the waters in three ways. First, Wyden’s question was not of the “when did you stop beating your wife” variety – what is termed a loaded question – a direct answer to which implicates one in an answer to a logically implied prior question that one may think not applicable in the first place. A loaded question is not the same as a question for which there is a complicated answer, for which there is neither “a simple yes or no.” Yet that description is not accurate either, because there is a simple answer to Wyden’s question. The answer is “yes.” It is simply that Clapper did not wish to give that answer, so he responded in what he described to Mitchell as the “least untruthful manner.” Yet this is not so either, since, with the fully correct answer being “yes,” an answer of “no” is actually the most untruthful answer possible.

Since Snowden’s disclosures first began to appear in the Washington Post and the Guardian, reactions have not been predictable according to political leaning, but that political positions have influenced  reactions is undeniable. Now, this past week, we have seen the first aggressive attempt to impugn not Clapper’s, but Ron Wyden’s integrity and put him in the wrong. The attempt appears to come from the national security establishment.

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Joel Brenner

Joel F. Brenner, former Senior Counsel and Inspector General at the National Security Agency and “head of U.S. counterintelligence under the Director of National Intelligence,” produced for the Lawfare blog a piece titled “Dishonor in High Places: Sandbagging the Intelligence Chief—Again.”

The dishonor, you should know, according to Brenner, is Wyden’s.

Wyden is a member of the Senate Select Committee on Intelligence and had long known about the court-approved metadata program that has since become public knowledge. He knew Clapper’s answer was incorrect. But Wyden, like Clapper, was also under an oath not to divulge the story. In posing this question, he knew Clapper would have to breach his oath of secrecy, lie, prevaricate, or decline to reply except in executive session—a tactic that would implicitly have divulged the secret….

This was a vicious tactic, regardless of what you think of the later Snowden disclosures. Wyden learned nothing, the public learned nothing, and an honest and unusually forthright public servant has had his credibility trashed.

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Oregon Senator Ron Wyden

According to Brenner, Wyden might rather have introduced legislation to bar metadata collection, even though he would have been hamstrung in describing in specific terms the kinds of activity against which he sought to legislate, and thus from informatively lobbying his fellow senators and the support of the general public, and even though, Brenner admits, the bill “would have died quickly” in the senate. Alternatively, argues Brenner – pulling a rabbit out of the hat of debate about Edward Snowden’s actions – Wyden could have engaged in civil disobedience, by breaking his oath of confidentiality and revealing the metadata program to the American people, and in the tradition of Socrates, Thoreau, Gandhi, and King, accepting the legal punishment.

But Wyden did neither of these things. He lacked the courage of his conviction, and instead of running any risk himself, he transferred it to the director of national intelligence, putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information….  It was a low dishonorable act, and nothing good will come of it.

Brenner’s striking temerity in turning the tables on Wyden should affront all democrats. It perversely mischaracterizes the events and players: who exactly it was who behaved dishonorably and who with respect for the rights and proper role of the American people.

Whatever the virtues of Clapper’s overall service to the country, in this instance his lie perfectly represented the vice of the metadata program – as did another kind of vice, that of Wyden’s question to Clapper, pressing Clapper between two contradictory obligations. The history of revelations about the metadata program, as well as Clapper’s further explanations of his lie to conceal it, fully contrarily reveal just how perfectly his exchange with Wyden serves to represent the program’s undemocratic nature.

In the first days after the Post and Guardian stories broke, amid much political positioning, there were those who pointed out, for varying reasons, that news about the telephony metadata program was not, in fact, new.  Leslie Cauley first broke the story for USA Today in May 2006 during the Bush administration. There was very vocal reaction, with Vermont Senator Leahy among others protesting the sweep of the program and then Pennsylvania Senator Arlen Specter calling for the phone companies to appear before congress. The Bush administration defended the program, stating in what should seem familiar terms from today: “The intelligence activities undertaken by the United States government are lawful, necessary and required to protect Americans from terrorist attacks.”

Quickly enough, some phone companies demanded a retraction of USA Today’s report.

As the paper reported, “In a letter to the newspaper’s publisher, Craig Moon, [BellSouth] noted that the story said BellSouth is “working under contract with the NSA” to provide “phone call records of tens of millions of Americans” that have been incorporated into the database.

“’No such proof was offered by your newspaper because no such contracts exist,” stated the letter, portions of which were read by spokesman Jeff Battcher. “You have offered no proof that BellSouth provided massive calling data to the NSA as part of a warrantless program because it simply did not happen.’”

We know from corporate denials of the initial stories this time around that inaccuracies of detail, which are not unimportant, nonetheless provide opportunity for legal parsing of terms that produce a quibbling evasion of the point. Were BellSouth and other companies then able to cast doubt because it was inaccurate to claim they were “working under contract” with the NSA, or that they did not do so under “warrantless” circumstances?

By July, USA Today had to retract some of its story, not because it had been disproven, but because of inability to substantiate some elements in it. The Washington Post reported,

Yesterday, in a lengthy article and accompanying “note to our readers,” the nation’s largest-circulation newspaper said it could not confirm that BellSouth or Verizon contracted with the NSA, which is charged with intercepting and analyzing foreign communications to look for possible threats to U.S. national security.

The correction illustrates the difficulty of reporting sensitive and often classified government actions, as anonymous sources sometimes backtrack, pursue their own agendas by leaking selective information or say more than they know. News organizations attempt to assemble authoritative stories from multiple sources and agencies, creating plenty of room for potential error.

What USA Today offered, however, was far from a retraction.

USA Today stood by much of its initial report, saying it had followed up with lawmakers and intelligence and telecom sources. Yesterday’s article reported: ‘Members of the House and Senate intelligence committees confirm that the National Security Agency has compiled a massive database of phone call records.’

By the following summer, a lawsuit filed by the ACLU and others was dismissed on technical grounds.

Fast forward to today. While varied representatives of the Obama administration have argued that the metadata and PRISM stories have endangered the nation’s critical terror surveillance programs and national security, others point to the preceding history of reporting and reasonably claim this is not news. Osama bin Laden was not disconnected from the internet and cellular phone networks because he and other terrorist operatives thought it was safe to call the United States or post on Facebook and Google +.

The crucial point to be made about the mere existence and the scope of a telephony metadata program is that rather than constituting any meaningful secret kept from terrorist enemies, it was a secret being kept from the American people.

Ron Wyden did not ask James Clapper a question to which a simple affirmative answer would reveal the least operational detail – only confirm the continued existence under the Obama administration of a program already reported to exist seven years earlier under the Bush administration. What Clapper has done in response is change the explanation for his lie several different times.

Before the Mitchell interview, Clapper tried a different tack:

At first he said the exchange with Wyden was about email content, as opposed to telephone metadata. ‘What I said,’ he told National Journal on June 6, ‘was the NSA does not voyeuristically pore through U.S. citizens’ emails.’ Since Wyden asked about ‘any type of data at all,’ and since the word email was not even mentioned during the hearing, that description was clearly false.

We know how this account changed for Mitchell. Also during the Mitchell interview, Clapper tried a new, NSA-branded and caviling definition of the word “collect,” as the Bush administration chose to redefine “torture” and replace it with enhanced interrogation. Said Clapper,

To me, collection of a U.S. person’s data would mean taking the books off the shelf, opening it up and reading it.

To “collect” means now to read. That book “collection” you have on those shelves? If you haven’t read them, it’s not a collection anymore.

As of Tuesday, July 2, there is yet another account by Clapper of his answer, a letter to Diane Feinstein, Chair of the Senate Select Committee on Intelligence, stamped June 21, 2013 and thus unaccountably delayed eleven days before being made public. In the letter, Clapper states that when faced with the “challenge” of the question, “I simply didn’t think of Section 215 of the Patriot Act.”

Consider that, as Brenner acknowledges, Clapper was informed ahead of time of the questions he would be asked at the March hearing. No questions took him by surprise, and he had the opportunity to consider his answers beforehand. Aware of the inaccuracy of Clapper’s answer, Wyden’s staff contacted Clapper’s office and offered the DNI the opportunity to revise any of his responses. He did not. Only when public revelations pointed clearly to the falseness of his reply to Wyden did Clapper attempt to revise and account publicly for the original answer.

We reach, now, amid these continuing discordant accounts, and revisions of accounts, the essential response to Brenner and his smear against Wyden. We refocus the history and culpability for Clapper’s actions on him.

Brenner has drawn a scenario in which Clapper was squeezed between competing obligations, to secrecy as a security official and to testify truthfully before Congress. Brenner himself excuses Clapper as having chosen – because of the “vicious” squeeze play of Wyden – the greater commitment to the oath of secrecy. Clapper, on the other hand, has never himself made that argument in his defense. He has offered various reasons why his answer to Wyden was “erroneous,” but never that it was a conscious lie told because he found himself in what he thought an impossible situation requiring one bad choice or another.

Yet Clapper has now further explained in his letter to Feinstein, “While my staff acknowledged the error to Senator Wyden’s staff soon after the hearing, I can now openly correct it because the existence of the metadata program has been declassified.”

We see what Clapper acknowledges here. He can “now openly correct” the record because the metadata program has been declassified. Which means he would not if it were not. Which means if it were not, he would still – even if he did not first make a mistake, redefine a word, or forget – choose to lie, as he did to Wyden in March.

Until the acknowledgement at the close of the letter to Feinstein, Clapper’s explanations for himself are completely at variance with Brenner’s defense of him by attack on Wyden. At the close of the letter Brenner acknowledges the vice of conflicting obligations and the choice he has made every day until the day of the letter to Feinstein. He has not simply lied to Congress once; he has lied to the American public daily.

Brenner’s smear of Wyden is to charge him with moral dereliction for not having revealed the existence of the metadata program himself, as an act of civil disobedience from high places, with acceptance of the legal penalty to follow. This sword-falling should have been performed on behalf of the figure who was overseeing a secret program, conducted under secret interpretations of law, whose judgment it was that keeping secrets from the American people was a higher moral charge than responding, in whatever way, truthfully to their constitutional representatives.

This, then, is how the Clapper lie represents the very nature of the metadata program. Secret in its existence, secret even in its legal justification, and with fair reason for its originators and operatives to believe large swaths of the American public would object to it, the secrecy of the program was raised in the mind of he who led it to a stature in commitment beyond that of even free, open, and democratic rule. For Wyden to place Clapper in the position he did was to focus attention on the very contradiction and undemocratic nature at the heart of any kind of government metadata program of surveillance against the American people.

A question that remains from Brenner’s effort is whether it portends a wider, more concerted effort to defame the man who made the right choice.

AJA

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