More than two years after telling Congress that the NSA didn’t knowing collect mass information on Americans, and almost two years after leaks from Edward Snowden exposed that answer as false, James Clapper wants people to know he didn’t lie. The man in charge of all our intelligence operations simply forgot about the programs that he says are crucial to our national security. The top lawyer in Clapper’s office says that the mass trawling of Internet data just slipped his mind, or something, The Hill’s Julian Hattem reports:
Director of National Intelligence Jim Clapper wasn’t lying when he wrongly told Congress in 2013 that the government does not “wittingly” collect information about millions of Americans, according to his top lawyer.
He just forgot.
“This was not an untruth or a falsehood. This was just a mistake on his part,” Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday.
There’s only one problem with this explanation — well, there are lots of problems with it, but one stands out. Senator Ron Wyden (D-OR) didn’t just spring the question on Clapper by surprise during that Senate hearing; he had given Clapper’s office 24 hours’ notice that he would ask it. Wyden intended to get the DNI on the record about data collection, and Clapper knew Wyden would be gunning for him:
“One of the most important responsibilities a Senator has is oversight of the intelligence community. This job cannot be done responsibly if Senators aren’t getting straight answers to direct questions. When NSA Director Alexander failed to clarify previous public statements about domestic surveillance, it was necessary to put the question to the Director of National Intelligence. So that he would be prepared to answer, I sent the question to Director Clapper’s office a day in advance. After the hearing was over my staff and I gave his office a chance to amend his answer. Now public hearings are needed to address the recent disclosures and the American people have the right to expect straight answers from the intelligence leadership to the questions asked by their representatives.”
Litt’s novel excuse would therefore mean that Clapper not only couldn’t remember about the programs when asked, he couldn’t remember them when given 24 hours to specifically recall them prior to being asked. And then, apparently, couldn’t remember that he forgot. In June 2013, Clapper tried talking his way out of a perjury charge by claiming he’d been as truthful as he could be in open testimony, an explanation that has nothing to do with memory loss:
“I responded in what I thought was the most truthful, or least untruthful, manner by saying ‘no,’” Clapper told NBC News on Sunday.
A newly revealed NSA program, however, in which the agency secretly vacuumed up the telephone records of millions of Verizon customers seems to fit the definition of both “data” and “millions of Americans.”
Last week, Clapper said his “no” meant that NSA analysts don’t read Americans’ emails. Some have noted that could explain his earlier answer because “collect” has a precise meaning in intelligence-gathering circles, and it’s along those lines.
On Sunday, Clapper elaborated: “This has to do with of course somewhat of a semantic, perhaps some would say too cute by half. But it is—there are honest differences on the semantics of what—when someone says ‘collection’ to me, that has a specific meaning, which may have a different meaning to him.”
At the time I wrote, “if this is the best he can do, he’s going to need a really good attorney.” Clapper needs to keep looking, if this is the best this attorney can do. Litt acknowledged that Clapper got warned that the topic would arise, but Clapper apparently thought a question about these super-critical programs was so super-important that he didn’t bother to super-prepare for it:
Litt on Friday said that Clapper merely did not have a chance to prepare an answer for Wyden and forgot about the phone records program when asked about it on the spot.
“We were notified the day before that Sen. Wyden was going to ask this question and the director of national intelligence did not get a chance to review it,” Litt said.
“He was hit unaware by the question,” Litt added. “After this hearing I went to him and I said, ‘Gee, you were wrong on this.’ And it was perfectly clear that he had absolutely forgotten the existence of the 215 program.”
It’s almost impossible to describe how inane this response is. Clapper knew the question was coming a full day in advance, but “He was hit unaware” by it? Does Clapper have Alzheimer’s? Here’s another question: If Litt notified Clapper that he had testified untruthfully immediately after the hearing, why didn’t Clapper ask the Senate committee for an opportunity to amend his testimony? Clapper and Litt sat on that discovery for at least a couple of months, before the Snowden leak made sure everyone knew Clapper had misled Congress. Keeping quiet about knowingly false testimony practically makes a case for obstruction of Congress all on its own.
If anything, Litt just made Clapper’s potential legal issues worse, not better. Of course, no one in Barack Obama’s Department of Justice would prosecute Clapper for lying to Congress, but Obama won’t be President forever, either, even if it seems like it. Obama should have fired Clapper two years ago, but he owns Clapper now. As Litt also told the audience, “We all make mistakes.”