Latest Explanation For James Clapper Lying About 'Essential' NSA Spy Program: 'He Forgot About It'

from the you-expect-us-to-believe-that? dept

By now, one hopes, you’ve seen this video of James Clapper lying to Senator Ron Wyden and the American public while testifying before Congress in early 2013:

Here’s the key transcript:

Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect?but not wittingly.

This was a lie. Many people believed it was a lie at the time, but that was confirmed thanks to the documents leaked by Ed Snowden, who later claimed that seeing that bit of testimony helped convince him that he needed to go through with his plan to leak this information.

James Clapper, of course, is the Director of National Intelligence, and the heads of the various intelligence agencies basically report in to him. He’s still in that job, which many people argue is a complete travesty. He flat out lied to Congress and got away with it.

What’s been really odd is that the story as to why Clapper lied seems to keep changing. When questioned about this, Clapper’s initial response was that he thought that Wyden was asking about collection of email information, which is clearly not the case if you just listen to the actual question. Wyden, pretty clearly, says “any type of data at all.” About a week later, Clapper changed his story, saying that he believed the question was an unfair “loaded question” (he compared it to the “when did you stop beating your wife” type of question — even though it’s not that at all) and then said that he gave “the least untruthful answer.”

This didn’t make much sense either — and it made even less sense when Senator Wyden revealed that he didn’t just spring this question on Clapper, but had sent it to Clapper’s office a day ahead so he could review the question and be aware of what he was to be asked. On top of that, Wyden revealed that after Clapper’s answer — which Wyden knew was false — Wyden staffers sent a letter to Clapper asking him if he wanted to amend his answer, and Clapper’s office refused to do so.

Finally, about a month later, Clapper finally admitted that he lied, now claiming that it was all a “mistake.”

“mistakes will happen, and when I make one, I correct it.”

Except… he had been given the chance to correct it and he didn’t. It was only after it was publicly revealed (via Snowden and Glenn Greenwald) that Clapper was outright lying that he claimed he made “a mistake.” But, even then, it only came after pretending he misheard the question, then claiming that it was a loaded question (when it was not). And then, of course, months later, Clapper could pretend, with the benefit of hindsight, that he should have been more forthright about the program, but that’s difficult to believe. And none of it matters, because the DOJ refuses to investigate Clapper for lying.

And yet, Clapper’s story continues to keep changing. Late last year, he tried to rewrite the story, suggesting that he was sandbagged and caught off-guard, rather than lying:

?When I got accused of lying to congress because of a mistake … I had to answer on the spot about a specific classified program in a general, unsecure setting.?

And, now, the latest is that the top lawyer in Clapper’s office (ODNI), Bob Litt, is trying to rewrite the story even more, by claiming that James Clapper forgot about the metadata collection program when he answered Wyden’s question:

?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.

?We all make mistakes.?

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.?

Instead, Litt said, Clapper had been thinking about separate programs authorized under Section 702 of the Foreign Intelligence Surveillance Act, which the NSA has used to collect massive amounts of foreigners? Internet data. The law explicitly prohibits the government from gathering the same kind of data about Americans, unless t is ?incidental.?

?If you read his answer it is perfectly clear that he was thinking about the 702 program,? Litt said. ?When he is talking about not wittingly collecting, he is talking about incidental collection.?

Litt, he said, also erred after the hearing by not sending a letter to the panel to correct the mistake.

First of all, while Litt at least is admitting that Wyden had sent the question in beforehand, he leaves out the part about Wyden asking Clapper’s office the next day if it wanted to amend Clapper’s answer. If it’s true that Litt immediately told him that Clapper was wrong, then you would think when asked by Wyden if he wanted to amend his answer, he would have done so. He did not. So either Litt told Clapper he was wrong and Clapper said, “Hey, let’s let that lie stand,” or Litt is not being truthful here either. It wasn’t just them not sending a letter correcting the mistake, but it was directly rejecting Wyden’s staff specifically asking them if they wanted to correct the record. That shows that any claim that Clapper just “forgot” or even “misspoke” has to be a flat out lie, since he had a clear opportunity to correct the mistake and was even asked to do so, and consciously chose not to do so.

But much more importantly, considering just how much Clapper and others have been prattling on for years about how “crucial” and “important” the bulk phone records collection is in protecting the American public, it is simply unbelievable to argue that Clapper would “forget” about the program. Either that means the program is not important at all… or that someone is lying.

The fact that Clapper’s story on this keeps changing suggests he still can’t come to admit the obvious answer: he didn’t want to reveal his beloved secret program, and so he lied. He just flat out lied. And he’s still lying in failing to admit that.

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Comments on “Latest Explanation For James Clapper Lying About 'Essential' NSA Spy Program: 'He Forgot About It'”

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71 Comments
Anonymous Coward says:

Re: Place your bets

It’s like watching the Blues Brothers:

Jake: No I didn’t. Honest… I ran out of gas! I–I had a flat tire! I didn’t have enough money for cab fare! My tux didn’t come back from the cleaners! An old friend came in from out of town! Someone stole my car! There was an earthquake! A terrible flood! Locusts! IT WASN’T MY FAULT, I SWEAR TO GOD!!!

tqk (profile) says:

This man's head should be in a basket.

Buit much more importantly considering just how much Clapper and others have been prattling on for years about just how “crucial” and “important” the bulk phone records collection is in protecting the American public, …

But, it is. Anything that spurs the Edward Snowdens of the world into blowing the whistle on liars like Clapper is “crucial” and “important”, to all of us. If it takes pratfalls and faceplants by the likes of Clapper for the public to clue in, then lets have lots more pratfalls and faceplants! Keep ’em coming!

Trevor (profile) says:

He lied more than once to Congress

Clapper got away with lying to congress at least six times:

The first time.

When he said he “misunderstood” the question.

When he said it was an unfair question.

When he said he made a mistake.

When he said he got “sandbagged” by a sensitive question in an insecure setting.

When he said he forgot about the metadata.

John Fenderson (profile) says:

He just took Steve Martin too seriously

Who can forget this enduring Steve Martin bit?

You.. can be a millionaire.. and never pay taxes! You can be a millionaire.. and never pay taxes! You say.. “Steve.. how can I be a millionaire.. and never pay taxes?” First.. get a million dollars. Now.. you say, “Steve.. what do I say to the tax man when he comes to my door and says, ‘You.. have never paid taxes’?” Two simple words. Two simple words in the English language: “I forgot!” How many times do we let ourselves get into terrible situations because we don’t say “I forgot”? Let’s say you’re on trial for armed robbery. You say to the judge, “I forgot armed robbery was illegal.”

Anonymous Coward says:

This is what we voted for.

Those of you that vote your party line, or for the politicians that are corrupt because they still better than that other sleaze bag got us this. And especially, those of you whom stupidly believe that experience is important or even valuable when it comes to political office. The only thing I have seen gaining experience in congress do is corrupt them.

Einsteins definition of insanity applies here.

Anonymous Coward says:

Re: This is what we voted for.

The longer you are in office, the less respect you will have for moral implications and the less fear you will have of bending the rules. Those are often common components of having a job.

The problem is that the politicians jobs are filled with temptations and bending of rules is such an easy behaviour as soon as you have done it once.
Today it seems the bending of rules start as soon as the person realize they want to become a politician. The political parties have people with experience in rule bending and it slowly corrupts. Followed by a campaign where money grow on trees for the benders. As soon as they are in a job of power they have already gotten used to the bending and from there they continue to develop bad habits.

Be aware that bending rules may be legal.

Anonymous Coward says:

What a croc…a gotcha question to a person he well knew could provide no answer without violating his obligations concerning the preservation of classified information. Frankly, Clapper should have said in a strong voice “No!”, talked with the chair and scheduled a classified session immediately after the public session, and then in a classified setting cut Wyden a new one while calling for the immediate termination of his security clearance.

We have had this “discussion” before, and in each instance my character has been attacked because you fail to understand the factual predicates that inform my comment. Doubtless you will do it again, but all it will point out is that you have no experience dealing with classified information that would make it immediately apparent to you why the simplistic responses to how Clapper should have acted miss the mark entirely.

John Fenderson (profile) says:

Re: Re:

“a gotcha question to a person he well knew could provide no answer without violating his obligations concerning the preservation of classified information. “

Except that’s not true. First, he was given a lot of advance notice the question was coming, so it’s not like he couldn’t have been prepared for it. Second, he did have a non-lie answer available to him: “I cannot answer that question in this forum.”

And even if for some reason “no comment” was not an answer he could legally give, that in no way excuses him for lying.

Anonymous Coward says:

Re: Re: Re:

Did you even watch the hearing? I think not because you would have noted the opening remarks by the chair that were diected to Wyden without using his name publicly. Wyden was on a mission to declassify information that he had been unable to convince the committee was the right course. Rather than sticking his neck out and showing the courage of his convictions, he decided that throwing someone else under the bus was the safer course. That was the act of a coward.

JP Jones (profile) says:

Re: Re: Re:4 Re:

In fact, there’s an executive order that literally states you cannot classify information in order to:

(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition…

I think this is one of the reasons many people are extremely interested in whether or not this program was legal or not. If found illegal, it means the classification was illegal as well, unless they can use some BS retract-o-logic to state they didn’t know it was illegal at the time so it could be classified.

I really wish I could use that excuse; “Sorry, officer, I didn’t know the speed limit, I was driving by so fast I must have missed it. Since I didn’t know, it’s not illegal, right?”

Anonymous Coward says:

Re: Re:

[quote]
Frankly, Clapper should have said in a strong voice “No!”, talked with the chair and scheduled a classified session immediately after the public session, and then in a classified setting cut Wyden a new one while calling for the immediate termination of his security clearance.
[/quote]

And yet… he didn’t. He had the power, ability, and the standing (according to you) to do so.. and yet.. he didn’t.. and thats Wydens fault? Talk about “missing the mark entirely”.

Mike Masnick (profile) says:

Re: Re:

What a croc…a gotcha question to a person he well knew could provide no answer without violating his obligations concerning the preservation of classified information. Frankly, Clapper should have said in a strong voice “No!”, talked with the chair and scheduled a classified session immediately after the public session, and then in a classified setting cut Wyden a new one while calling for the immediate termination of his security clearance.

Yes, we’ve had this discussion before, and we’ve even pointed you to similar hearings where Clapper and others like Keith Alexander have simply said “we cannot discuss specific matters like this in unclassified settings” or something along those lines.

The idea that you are publicly advocating having the intelligence community lie to the Senate Intelligence Committee any time they ask a question that might embarrass them, says a lot about you.

None of it good.

Anonymous Coward says:

Re: Re: Re:

According to many diverse sources, Clapper had already provided accurate testimony to the committee in classified sessions. Wyden already knew the answer, so his raising it in an unclassified setting was solely to try and force an outcome he had been unable to accomplish in private among the members of the committee…the disclosure of classified information by means other than having it properly declared unclassified, i.e., making Clapper the instrument of his desires instead of simply showing the courage of his convictions by disclosing the information himself.

Anonymous Coward says:

Re: Re: Re:4 Re:

I do not believe he was trying to deceive because if that was his intent he would likely have provided the same answer to the public’s representatives in the prior classified briefings. There is nothing to suggest that in any one of those briefings he tried to deceive/mislead the members of the committee. I believe the reason for his answering as he did in the unclassified setting is much more straightforward…the preservation of classified information until such time that the information was properly declassified.

Mike Masnick (profile) says:

Re: Re: Re:5 Re:

I do not believe he was trying to deceive because if that was his intent he would likely have provided the same answer to the public’s representatives in the prior classified briefings.

Nice word play. Do you really believe that the politicians are the public’s representatives?

There is nothing to suggest that in any one of those briefings he tried to deceive/mislead the members of the committee.

You’re absolutely wrong. Wyden and his team have spoken many times about how Clapper has tried to mislead them.

I believe the reason for his answering as he did in the unclassified setting is much more straightforward…the preservation of classified information until such time that the information was properly declassified.

Again, you keep saying that and we’ve explained MULTIPLE TIMES why that answer makes no sense at all. The proper answer if asked about classified info is “we will provide details in a classified setting” or “we have provided details that answer your question in a classified setting.” Clapper has done that in the past. He did not do that here.

Instead, he lied, which is against the law.

I thought you were a “rule of law” kind of guy. Funny that that goes out the window when it comes to people you support. It suggests blatant hypocrisy on your part.

JP Jones (profile) says:

Re: Re:

Preserving classified information is a lower priority than truthfully answering a question under oath. Keep in mind that Wyden is on the Select Committee on Intelligence, a senate committee specifically charged with overseeing the intelligence organizations. There’s a reason Clapper called Wyden “Sir;” it’s because Wyden outranks Clapper. Clapper would not have been “cutting a new one” to anyone; if anything it would have been the opposite.

If you had experience with classified information you would know this. You would also know that senators are protected from revealing classified information during debates on the Senate floor. You would also know that information that protects illegal or embarrassing activity cannot be classified by executive order.

I realize that individuals that work with classified information are trained to protect classified data above all else. It’s their job to do so, and in intelligence circles, classified information is held to an almost sacred level, regardless of what the actual information is. To an analyst, the sentence “(TS//SCI//NOFORN) The sky is blue.” is a sentence worth killing or dying to protect. For the guys doing the day-to-day intel work, this is the reality, and it’s a good thing; we don’t need people with a little bit of information making decisions that could affect national security.

Wyden and Clapper are not those people. They’re the ones that are charged with deciding whether or not intelligence operations are in the best interest of the public. Wyden believed the 215 program was not; Clapper presumably believe it was. As a senator representing the American people, and as a member of the senate committee in charge of overseeing the intelligence community, it is absolutely Wyden’s place to question whether or not a specific program should be classified, and he did in a way that gave Clapper an out, but also allowed for the opportunity to establish a public debate.

Instead Clapper chose to lie under an oath to tell the truth. Considering that he was “protecting” classified information under another oath, I find his willingness to disregard one while having the option to avoid doing so extremely concerning.

Anonymous Coward says:

Re: Re: Re:

Rude, crude and lewd comments make you appear to be a small person more intent on reacting immaturely than attempting to engage in a substantive discussion on a subject over which reasonable minds can disagree.

In this matter highly respected individuals stand on opposite sides, and are able to do so without engaging in personal attacks and gratuitous insults. You would be wise to follow their lead and try constructive engagement.

JMT says:

Re: Re:

We have had this “discussion” before…

We know, which makes it all the more amusing to see you once again claim it was a “gotcha” question that he had no safe way of answering. This is factually incorrect, and you know this to be the case, so that would make your comment above a lie. You and Clapper both seem to have the relaxed morals regarding truth-telling.

Michael (profile) says:

it was perfectly clear that he had absolutely forgotten the existence of the 215 program.

How much evil stuff does this agency have to be involved in that they can FORGET that they are collecting phone records for every US citizen?

This should be the story – what were they doing that was weighing on his mind so much more than the violation of the 4th amendment rights of every citizen of the US that HE FORGOT is was happening?

John Cressman (profile) says:

I like it!

Judge: Did you murder John Doe?

Defendant: Absolutely not your honor.

Judge: We have a video tape of you doing it, along with your prints on the murder weapon and two dozen witnesses. And now you lie to the court?

Defendant: No our honor, I just forgot. See, I was thinking of JANE Doe… it’s clear that I was thinking of Jane Doe and not John Doe. It was just a mistake.

Edward Teach says:

Why is the dragnet surveillance so valuable?

Why is the dragnet surveillance valuable enough to lie to congress about it in public? Is the “Intelligence Community” just going on gut feels and superstitions, or is there something else worthwhile about having all phone records, all emails and all everything else about your own “citizenry”?

Also, when does misbehavior on the part of bureacracy rupture whatever “social contract” or “social fabric” or deal or whatever trust holds the society together? I don’t want to be around when or where that sort of thing happens.

Anonymous Coward says:

Are you telling me you do not believe Wyden is the “people’s representative”? I know the answer, so it is really a rhetorical question. To the point, yes, the members of Congress are elected by the people in their respective districts (House) and states (Senate), and while they certainly to not reflect the views of each and every person within their districts and states, they are the ones elected to office in accordance with the rules established for our republic by the Constitution. The are answerable to the voters, and it is the voters who ultimately decide if they stay or leave (though to be honest I believe the amendment by which the election of Senators now takes place was a terrible mistake and believe it should be rescinded).

When I speak about deceiving I am limiting my comment solely to the present issue…the answer to the question propounded in an open session by Wyden. Even Wyden has admitted he already knew the answer from classified briefings at which Clapper testified and provided an accurate answer.

Re what you keep saying Clapper could or should have said, you fundamentally miss my point for reasons I can only ascribe to your not being one who was working to any intimate degree within the classified information system. I have had this identical discussion with well-known lawyers and legal academics who initially aligned almost completely with your views, but after a few exchanges even they eventually admitted that the answer was not as clear cut as you seem to believe. While I do understand where you are coming from and why you believe as you do, experience within intelligence information circles has taught me that the answer(s) you assert should have been provided do convey useful information to others. Many times a non-answer, such as “defer to a classified sessions” is incredibly useful by confirming that something is there that was previously unknown to the public at large. Yes, it may not be the most detailed answer imaginable, but intelligence groups gather up information in bits and pieces, and your answer would be an incomplete piece, but an important piece nevertheless.

As for “rule of law”, the law here is not as clear as you would have others believe (you do not need to take my word for it…there are many respected attorneys and academics who have made precisely the same point), and to call me a hypocrite because I take the time to point out the lack of clarity is a cheap shot that should be beneath you.

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