In Which I Side–Somewhat Belatedly–with James Clapper

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.[1]

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,[8] 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.

Comments

  1. Wyden warned Clapper of the question prior to the session and gave him an opportunity to retract afterwards. Clapper thus had the option of asking for an executive session, of announcing in advance that, because of the sensitive nature of the material, he was unwilling to answer questions, or avoiding the situation in some other way. He chose instead to lie under oath, to Congress and to the American public.

    Is it your view that government agents are entitled to commit felonies without legal consequences, as long as they do them in what they reasonably view as part of their job? Would that include a real world 007, licensed to kill? I can easily imagine a lower level equivalent of Clapper, discovering Snowdon’s plans at the last minute, reasonably believing that killing him just before he started to release information was the solution to the problem that best served the national interest.

    • We may disagree on this issue, but as I wrote in my post, I believe that if Clapper asked for an executive session, he would have essentially telegraphed to the world that the answer to Wyden’s question was “yes,” which would have put the DNI in the position of exposing an intelligence gathering operation. Wyden may have warned Clapper and may have given Clapper the opportunity to amend, and that is worth noting. It is also worth noting that the chair of the committee, Senator Feinstein, warned members not to ask questions that have classified answers–a warning that Wyden chose to ignore. On his own initiative, Wyden could have requested an executive session to ask questions that have classified answers, thus avoiding the phrasing of a yes-or-no question in public, and allowing Clapper the chance to answer truthfully in executive session without tipping people off in public to the existence of a classified operation in any way. Or, as Brenner writes, Wyden could have revealed the whole thing on his own, and could have been protected from prosecution by the Speech and Debate Clause of the Constitution. I imagine that if Clapper had to do it over again, he would have requested that the committee go into executive session. It certainly is what I would have done in any event; if the president or anyone else got upset with me telegraphing an answer, I would state that any anger should be directed Wyden’s way. But even if Clapper asked to go into executive session, it would have raised eyebrows and compromised secrecy. That is no way to run a railroad, as far as I am concerned.

      I certainly don’t like the idea of having government agents commit felonies without legal consequences. But at the same time, I also don’t like situations in which grandstanding senators seek to mousetrap people in public when there are better ways to get an answer to a particular question. Of course I would not advocate assassinating the likes of Edward Snowden, even though I believe that what Snowden did was illegal, and my blog post does not indicate otherwise.

      • I don’t think it was a matter of grandstanding–as suggested by his warning Clapper in advance. If Clapper had said that he was unwilling to answer questions because some might deal with classified matters, that would tell the public that there were secrets–hardly a surprising revelation.

        I take it that the objective was to try to get the NSA to admit that it was secretly spying on a large part of the population, in the belief that such behavior would not be acceptable to the American public. That strikes me as an entirely legitimate objective. Do you disagree? Do you think the NSA is entitled to keep secret not merely the details of its activities but the very fact that it is doing things dubiously legal and dubiously defensible–and by keeping them secret avoid having to defend them? And I take it that Clapper lied because he thought he could get away with it—and turned out to be mistaken.

        Feinstein has made it clear that she approved of what the NSA was doing–the only exception being the discovery (if it was a discovery) that it was not only spying on ordinary people like you and me but on important people like her, specifically the chief executive of Germany. Her response to other people discovering that it was doing things that might well be illegal was to propose legislation to make what it was doing legal.

        “I certainly don’t like the idea of having government agents commit felonies without legal consequences.”

        You may not like it, but you are arguing that a government agent who committed a deliberate felony ought not to suffer legal consequences, no?

        “But at the same time, I also don’t like situations in which grandstanding senators seek to mousetrap people in public when there are better ways to get an answer to a particular question.”

        What better way was there to inform the public that the NSA was engaged in mass spying on the U.S. population? Wyden might have known the answer already, if not he might have been able to get it in executive session, but he would then have been under very heavy pressure not to reveal it.

        “Of course I would not advocate assassinating the likes of Edward Snowden, even though I believe that what Snowden did was illegal, and my blog post does not indicate otherwise.”

        The question is whether, if a lower level equivalent of Clapper did assassinate Snowden, you would be in favor of having him tried for murder. If so, what is the essential difference between that case and this one?

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