Senators Not Impressed With James Clapper's Carefully Worded Responses

from the this-program? dept

You may recall that, back in June, 26 Senators had teamed up to send Director of National Intelligence, James Clapper, a series of rather direct questions about the NSA’s surveillance efforts. Clapper took his sweet time (nearly a month) to get back to them, but finally did so on Friday (always have to avoid the news cycle, I guess). The answers are… about what you’d expect: strongly denying certain things, using extremely precise language, and claiming that most of the important details are in the “classified response” that was attached for Senators only. Let’s dig in a bit:

This leak, along with the others that have occurred, will do significant damage to the Intelligence Community’s ability to protect the nation. But it is not correct to say that Section 215 had been “secretly reinterpreted.” The relevant materials were, of course, properly classified to protect sensitive intelligence collection activity, but, as Congress required, the Executive Branch fully and repeatedly briefed the Intelligence and Judiciary Committees of both Houses about the program and timely provided copies of the relevant classified documents to the Committees. Moreover, the Executive Branch undertook special efforts to ensure that all Members of Congress had access to information regarding this classified program prior to the USA PATRIOT Act’s reauthorization in 2011, including making a detailed classified white paper available to all Members. Specifically, in December 2009, the Department of Justice and the Intelligence Community provided a classified briefing paper to the Senate and House Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata program. Both Intelligence Committees made this document available to all Members prior to the February 2010 reauthorization of Section 215. That briefing paper was then updated and provided to the Senate and House Intelligence Committees again in February 2011 for all Members in connection with the reauthorization that occurred later that year.

Note how it’s made clear that this information was available to those in Congress, but that doesn’t mean that most in Congress were looking over it — or that those who were allowed to see it (i.e., the Representatives and Senators themselves) could fully understand what it all meant without their staff experts who (for the most part) are not allowed to see that information. Notice that they didn’t provide a “briefing” for all members of Congress, but rather “a classified briefing paper… that could be made available.” These are not the words of someone who made sure that Congress would be informed. These are the words of someone who wanted to have a “cover your ass” trail down the road to pretend that Congress was informed.

Clapper also makes liberal use of “under this program” language to avoid answering more direct questions about things done by the NSA and other government agencies:

The data collected under this program is limited to telephony metadata: information about telephone calls such as the originating and dialed telephone numbers, the time a call is made and its duration. It does not include the content of any communication or the identity of any party to a communication…. In addition, as we have repeatedly and publicly said, we are not collecting cell site location information under this program…. Data acquired under this program may be used only to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.

Right. Under this program. But, this is just one of many programs. Not very comforting. In fact, later in the letter, Clapper admits that under other programs, the NSA also collects “internet metadata.”

In addition to the bulk telephony metadata collection, NSA has in the past used FISA authorities to collect bulk Internet metadata. The Government terminated this collection program in 2011 for operational and resource reasons reflected in the classified December 2, 2011 letter to the Senate Select Committee on Intelligence. NSA has not used USA PATRIOT Act authorities to conduct bulk collection of any other types of records. Additional information is provided in the classified supplement.

This information was already more or less public, with details coming out at the end of June.

Later, Clapper again insists that Congress was fully informed, but “fully informed” seems to mean something very different to him than it does to all those members of Congress who have been speaking out about the program:

… this program was operational and, as discussed above, Congress was fully aware of it when it reauthorized the legislation for an additional five year period in 2011.

There was also a question about whether or not the NSA is tracking locations via mobile phone data. Clapper again chooses his words carefully, giving a sort of “well, not at this time” type of answer, but by not saying that it doesn’t have the authority to do so, makes it clear that it believes it can do this if it wishes:

As noted above, under this program NSA is not currently receiving cell site location data, and has no current plans to do so. The Director of NSA indicated on October 20, 2011 that he would notify Congress of NSA’s intent to obtain cell site location data prior to any such plans being put in place.

Not surprisingly, the two main authors of the original letter, Senators Ron Wyden and Mark Udall are not particularly satisfied with this response:

This response is appreciated, but the intelligence community still has left many of the questions most important to the American people unanswered. Given the implications for the privacy of the millions of law-abiding Americans, intelligence leaders were specifically asked to demonstrate the unique value of the bulk phone records collection program. They did not. Instead, they persist in citing two cases where the government could have obtained a court order or emergency authorization for the information it needed. The bottom line is we still have yet to see concrete evidence that the dragnet collection of phone records provides any unique value.

It’s also deeply troubling that while the NSA claims no current plans to turn Americans’ cell phones into tracking devices, it clearly claims the authority to do so. This response leaves our question of past plans unanswered. Their violations of the rules for handling and accessing bulk phone information are more troubling than have been acknowledged and the American people deserve to know more details. And we are amazed that intelligence leaders deny that the PATRIOT Act has been ‘secretly reinterpreted’ when it is obvious that most Americans and many members of Congress had no idea that this law could be used for bulk collection of millions of law-abiding Americans’ personal records.

In addition, the intelligence community’s response fails to indicate when the PATRIOT Act was first used for bulk collection, or whether this collection was underway when the law was renewed in 2006. We believe that law enforcement and intelligence agencies should have the tools needed to protect the American people, but the collection of bulk phone records needlessly invades the privacy of law-abiding Americans without visibly enhancing their safety.

Also, remember that this is from James Clapper, who has already admitted to lying to Congress about these programs. It’s difficult to see how he has even the slightest credibility on this, let alone why he still has the job.

Filed Under: , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Senators Not Impressed With James Clapper's Carefully Worded Responses”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Re: Re: Re: Re:

You would be surprised how much respect most countries in Europe have for the rights of non-citizens. I am not a citizen of the country in which I reside but I have a high expectation of my rights being protected here. Of course there are occasions when this does not work as it should and they are the cases which tend to be highly publicised. But to outsiders, the US government now appears as oppressive and suspicious of citizens and non-citizens alike.

Cixelsid (profile) says:

Re: Re: Re: Re:

AFAIK US and Canadian citizens are afforded almost all the rights of an EU citizen in Germany, except for labour, but a work permit can be applied for after finding a job. For other countries it’s the other way around.

As for whether Germany would authorize assassination from German soil? I’m not so sure… but your own government will and does:

There are around 21 US military bases in Germany

There says:

Detaisl, details

For example… “Not collecting cell site location data” – I assume that’s the data reported by the tower as your precise location… but that does not say whether they currently collect cell tower info, which would giver relatively approximate locations (fairly specific in some dense areas); or power level – another distance indicator.

kenichi tanaka (profile) says:

Everybody should be very concerned about this because supposed the NSA/Justice Department discover information about a crime, like child pornography. Let’s say again that the information is passed on to local prosecutors. Let’s say again that a court allows the information to be used in a criminal trial even though no warrant was ever used. By “no warrant”, I mean that the FISA court is not a legal court because they do not allow an adversarial process where a defense attorney represents the opposing party of the NSA/Justice Department.

Not only could evidence be used on the face of a warrant that cannot be disclosed (all FISA warrants, etc, are classified and placed under GAG orders).

The FISA courts post a threat to our criminal justice system because it allows the FISA court to gather evidence that prosecutors wouldn’t be able to use.

Anonymous Coward says:

Every time I hear something from Clapper I get the creeps from this guy. He appears not to be able to tell the whole truth about anything.

This ties in with the whole present executive branch, much of the congress that evidently decided no additional information was needed to continue to support it, and the whole business reeks of dishonesty as well as illegal actions. You can claim legality all you want, until it is proven in court it does not make it legal. This kangaroo FISA court is apparently a court in name only. I know of no court in the US that consistently has the ability to hide behind confidential and secret rulings. As such there are no checks and no balances at all, just a mockery given how little and how few requests going through that court were actually held to some sort of standard to say more was needed to justify it.

It is not the words I am hearing anymore. I know there is no or very little truth in them and the only thing left to get a clue is the actions. Those actions I am hearing of are not comforting in the least.

Anonymous Coward says:

Revealed !! the classified document also contains the Glossary definitions to interpret the unclassified document. Some excerpts:

> Metadata : We also record the entire calls to get “digital voice signatures”, our analysts don’t pay any attention to the content.

> Secretly reinterpreted : We used Google Translate to interpret the law into Chinese and back, over and over until we were satisfied with the “interpretation” we needed.

> Oversight : The view from our surveillance drones.

Anonymous Coward says:

how can congress do oversight

The few intelligence committee members don’t have power to stop anything they object to. They aren’t able to tell the public nor fellow legislators what’s going on. All Wyden’s been able to do for the past X years is hint that there’s something wrong but he can’t say what. With his tongue tied, he has no power to stop things. Congressional oversight is a rigged game.

AG Wright (profile) says:

Another problem

The people defending this can’t understand the simple fact that one reason some people are so upset isn’t just the fact that this information is collected. It is the fact that eventually it will be abused.
Whether is is abused by some guy that wants to follow his ex or a prosecutor chasing someone who isn’t really guilty it eventually will be abused, just as all other government overreaches have always been abused.

richard bittner says:

Re: Prism effectiveness

Any question regarding the effectiveness of the continued domestic employment of the PRISM spy program has b?en rendered moot by the mere disclosure of it’s existence. Realistically, the only remaining effective target is the American People…Why are people listening to these revolving door generals are parrots of the NATION Surveillanc Agency (N.S.A.) When you combined the Military. Industrial Complex with the National Surveillanc Agency..youhave another cornerstone of Facism in place.

The American public says:

Go directly to jail, do not pass Go

They should start building a jail for all these people who conspired to violate the laws of the Constitution. Torture them in Gitmo to get around the no torture rule, send in drones on their family homes, confiscate their bank accounts, deny them due process and throw them in jail. Hold secret court sessions to determine their fate and the evidence presented is secret. This should be the fate of those in the NSA, White House, Congress, and other agencies that have participated.

TaCktiX (profile) says:

Re: Go directly to jail, do not pass Go

I disagree. While what they have done and continue to do is despicable in every sense of the word, stooping to their level to get “justice” is anything but. We should give them their fair trial, their attorney, and all of the protections that the Constitution guarantees. Only then would we have the high ground.

TaCktiX (profile) says:

Re: Re: Re: Go directly to jail, do not pass Go

Solitary confinement stretches the definition of cruel and unusual punishment, and has classically only been employed when someone has been an explicit danger to himself or others AFTER being incarcerated. That, and solitary confinement is generally for limited periods, not years. Thus, “poetic justice” or not, it wouldn’t be Constitutional justice.

Anonymous Coward says:


“The relevant materials were, of course, properly classified to protect sensitive intelligence collection activity, but, as Congress required, the Executive Branch fully and repeatedly briefed the Intelligence and Judiciary Committees of both Houses about the program and timely provided copies of the relevant classified documents to the Committees.”

Since “relevant” now means “all” I guess he means all materials were classified. And we have seen his idea of briefing Congress on the “relevant” materials before.

Are you collecting any data?

Hephaestus (profile) says:

As noted above, under this program NSA is not currently receiving cell site location data, and has no current plans to do so. The Director of NSA indicated on October 20, 2011 that he would notify Congress of NSA’s intent to obtain cell site location data prior to any such plans being put in place.

Two things,
1) He says cell site location data and not GPS data. Which are two totally different things.
2) I am pretty certain he is not being truthful.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...