Back in June of this year, in passing, I faulted Director of National Intelligence James Clapper for lying to Congress. I see now that Rep. James Sensenbrenner wants Clapper prosecuted for the lie. Let me dissent from that view, and from my previous stance on this issue.
As discussed here, Clapper was trapped by a question from Senator Ron Wyden, a member of the Senate Intelligence Committee, regarding NSA spying on the general population, and put into an impossible position. Either Clapper could preserve the secrecy classification of the NSA’s activity by lying to Congress (the path he chose), or he could admit that the NSA does indeed spy on Americans, which would put the DNI in the ridiculous position of blowing the cover on an American intelligence operation whose authorization he was (at least) partly responsible for. I chided Clapper for not asking that the matter be discussed in executive session, but that was unfair of me; even if Clapper had made such a request, he would have advertised to any and all sentient humans that the NSA does indeed carry out some form of domestic espionage program.
As Joel Brenner’s piece points out, the person most responsible for Clapper’s predicament was not Clapper himself; it was Senator Wyden. Quoting Brenner:
On March 12 of this year, Senator Ron Wyden asked James Clapper, the director of national intelligence, whether the National Security Agency gathers “any type of data at all on millions or hundreds of millions of Americans.”
“No, sir,” replied the director, visibly annoyed. “Not wittingly.”
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. The committee chairman, Senator Diane Feinstein, may have known what Wyden had in mind. In opening the hearing she reminded senators it would be followed by a closed session and said, “I’ll ask that members refrain from asking questions here that have classified answers.” Not dissuaded, Wyden sandbagged he director.
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.
As Brenner notes, Wyden is not the first to have pulled this kind of stunt. Nor will he be the last. But if he really wanted to be responsible and adult about things, Wyden himself would have taken the initiative of requesting that the Senate Intelligence Committee go into executive session to discuss top secret and confidential matters; thus allowing Clapper to answer questions truthfully without exposing ongoing intelligence operations. Indeed, Wyden could have done more than that:
The senator had two choices. He could have done what legislators are elected to do, which is to legislate. Without breaking his oath, he could have introduced a bill stating, for example, “Neither the National Security Agency nor any other agency or department shall acquire, collect, or otherwise gather bulk metadata (which he could define) of communications, all parties to which are in the United States.” That would be the gist of it. That bill would have generated ferocious debate, though realistically it would have died quickly. But Wyden is in a small minority in the legislature of a representative democracy. He doesn’t get to make the rules.
That would have left him with one honorable alternative: civil disobedience. He could have broken the law and, in the tradition of Socrates, Thoreau, Gandhi, and King—but unlike Edward Snowden—remained in the country to face the laws he deemed unjust and in the process, sought to undermine them. The consequences would probably have included resignation or removal from the intelligence committee and destruction of the committee’s reputation as a group that can keep secrets. But unlike Clapper, Wyden could probably not have been prosecuted for releasing top-secret classified information, because the Constitution’s Speech and Debate Clause would have immunized from being “questioned in any other Place” about his statements in the Senate.
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. Unlike Helms, Clapper was not under oath and therefore not liable to a charge of perjury, but Wyden did put Clapper in jeopardy of making or concealing a material fact or giving a false statement, a charge that carries a penalty of up to five years in prison. It was a low dishonorable act, and nothing good will come of it.
Well said, and I apologize for and take back my criticism of Clapper. Wyden should be ashamed of his actions, and Sensenbrenner should back off of his calls for Clapper to be fired and prosecuted. James Clapper may be fair game for criticism on a number of fronts, but he shouldn’t receive opprobrium for being the target of an unfair and underhanded political ambush.