James Clapper’s Tip for Avoiding Lies: Don’t Do Talking Points

For a guy who warned for years about an abuse of the FISA Amendments Act and Section 215 of the PATRIOT Act, I have to admit Ron Wyden was pretty circumspect  yesterday. He issued a statement, partly to reiterate his call to make this public, partly to suggest the program isn’t worth much.

The administration has an obligation to give a substantive and timely response to the American people and I hope this story will force a real debate about the government’s domestic surveillance authorities. The American people have a right to know whether their government thinks that the sweeping, dragnet surveillance that has been alleged in this story is allowed under the law and whether it is actually being conducted. Furthermore, they have a right to know whether the program that has been described is actually of value in preventing attacks. Based on several years of oversight, I believe that its value and effectiveness remain unclear.

And he sent out three tweets:

Of course, it’s the second tweet — showing the Director of National Intelligence lying in testimony to Congress about whether the NSA collects “any data at all on millions or hundreds of millions of Americans” — I found most interesting.

Wyden always has had a knack for exposing people as liars.

By the end of the day the National Journal had contacted Clapper to provide him an opportunity to explain why this lie to Congress wasn’t a lie. He offered a nonsensical explanation.

Director of National Intelligence James Clapper said Thursday that he stood by what he told Sen. Ron Wyden, D-Ore., in March when he said that the National Security Agency does not “wittingly” collect data on millions of Americans.

What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that,” Clapper told National Journal in a telephone interview.

On March 12, at a hearing of the Senate Intelligence Committee, Wyden asked Clapper: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded: “No, sir.” When Wyden followed up by asking, “It does not?” Clapper said: “Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.” Clapper did not specify at the time that he was referring to e-mail. [my emphasis]

Clapper’s lie — that he took Wyden’s “collected any type of data at all” to mean “voyeuristically pore through emails” — is all the worse for how bad a non-sequitur it is. Caught in a lie, the head of our Intelligence Community responded with word salad.

Given that abysmal attempt to explain away his lie, I find it all the more curious the Administration decided Clapper, newly exposed as a liar, would be the guy to head pushback to the revelations of the last few days. Late in the day Clapper issued first one, then another “statement” on the revelations.

Both, of course, issued stern condemnations of leaks revealing that he had lied (and that Americans have no privacy).

The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.

[snip]

The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.

Those are hollow warnings, of course, for the reasons I laid out here.

Clapper then goes on to claim that both stories misrepresent the programs.

The article omits key information regarding how a classified intelligence collection program is used to prevent terrorist attacks and the numerous safeguards that protect privacy and civil liberties.

[snip]

The Guardian and The Washington Post articles refer to collection of communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act.  They contain numerous inaccuracies.

Worlds tiniest violin! After refusing urgent requests from members of Congress who had been briefed on this to be transparent for years, the Intelligence Community has lost its ability to spin this!

Perhaps the most interesting part of Clapper’s two statements, however, is the way Clapper purportedly clarified a detail about the WaPo/Guardian stories on PRISM.

Clapper — and an anonymous statement from a Senior Administration Official issued minutes before Clapper’s — made explicitly clear PRISM operates under Section 702 of the FISA Amendments Act.

Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.

Activities authorized by Section 702 are subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress. They involve extensive procedures, specifically approved by the court, to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.

Section 702 was recently reauthorized by Congress after extensive hearings and debate.

Section 702, Section 702, Section 702.

This claim had only been implicit in the reporting in the WaPo and Guardian.

The WaPo provides this explanation for the genesis of the program.

PRISM was launched from the ashes of President George W. Bush’s secret program of warrantless domestic surveillance in 2007, after news media disclosures, lawsuits and the Foreign Intelligence Surveillance Court forced the president to look for new authority.

Congress obliged with the Protect America Act in 2007 and the FISA Amendments Act of 2008, which immunized private companies that cooperated voluntarily with U.S. intelligence collection. PRISM recruited its first partner, Microsoft, and began six years of rapidly growing data collection beneath the surface of a roiling national debate on surveillance and privacy. Late last year, when critics in Congress sought changes in the FISA Amendments Act, the only lawmakers who knew about PRISM were bound by oaths of office to hold their tongues.

[snip]

In exchange for immunity from lawsuits, companies such as Yahoo and AOL are obliged to accept a “directive” from the attorney general and the director of national intelligence to open their servers to the FBI’s Data Intercept Technology Unit, which handles liaison to U.S. companies from the NSA. In 2008, Congress gave the Justice Department authority for a secret order from the Foreign Surveillance Intelligence Court to compel a reluctant company “to comply.”

The Guardian includes this.

The NSA access was enabled by changes to US surveillance law introduced under President Bush and renewed under Obama in December 2012.

[snip]

The revelation also supports concerns raised by several US senators during the renewal of the Fisa Amendments Act in December 2012, who warned about the scale of surveillance the law might enable, and shortcomings in the safeguards it introduces.

When the FAA was first enacted, defenders of the statute argued that a significant check on abuse would be the NSA’s inability to obtain electronic communications without the consent of the telecom and internet companies that control the data. But the PRISM program renders that consent unnecessary, as it allows the agency to directly and unilaterally seize the communications off the companies’ servers.

Screen shot 2013-06-07 at 11.08.29 AM

But look at what they say about the timing. WaPo says the program started in May 2007.

Apple demonstrated that resistance is possible when it held out for more than five years, for reasons unknown, after Microsoft became PRISM’s first corporate partner in May 2007.

Guardian says MS got involved in December 2007.

Some of the world’s largest internet brands are claimed to be part of the information-sharing program since its introduction in 2007. Microsoft – which is currently running an advertising campaign with the slogan “Your privacy is our priority” – was the first, with collection beginning in December 2007.

The image included, however, says Microsoft got started in September 2007.

Clapper’s claim that this program is a 702 one is a half truth. If the chronology laid out in the two pieces is true at all, it means the program pre-dates FAA, which was passed in July 2008. Indeed, the WaPo’s chronology dates the program to before the Protect American Act, which was passed in August 2007.

Furthermore, there appears to be far more involvement from the FBI in the program that Section 702 would require or even allow.

Confirming — or claiming — that this program operates exclusively under Section 702 would be a leak of illegal information if it came from anywhere else. I’ve got a suspicion it is not, in fact, entirely true.

Yesterday, the National Journal also asked Clapper to assess his own career. Clapper responded by repeating a comment he made at a recent hearing when asked about Benghazi.

Clapper, asked to reflect on his tenure as DNI for a special issue of National Journal, also commented on the intelligence community’s handling of the Sept. 11, 2012, Benghazi attack that left U.S. Ambassador to Libya Chris Stevens and three other Americans dead. “The major lesson I learned from that is, don’t do talking points,” Clapper said.

He made this comment, of course, before the Administration issued in his name what must have been hastily drafted talking points.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

13 replies
  1. orionATL says:

    Our nation’s government&corporate protection racket;

    is this good for business, or what?

    “.. PRISM recruited its first partner, Microsoft, and began six years of rapidly growing data collection beneath the surface of a roiling national debate on surveillance and privacy…”

    What odds would you give that microsoft will face any serious pricing monoply inqueries from the feds?

    Any questions about anti-competition practices from its acquisition of other corporations – such as skype (oh happy day for protection usa)?

    Any serious income tax illegality or off-shore hoarding activities?

    Any federal challenges to microsoft’s “casual piracy” tyranny or other digital rights “needs”?

    P.s. was the federal govt covertly helpful while microsoft was buying skype?

  2. phred says:

    EW, I’ve been curious about the timeline of PRISM. When was the hospital confrontation and does it tie in to the PRISM program do you think?

    By the way, I was delighted to see your column highlighted at the Guardian — well done!

  3. grayslady says:

    Excellent analysis, Marcy. Yes, it’s impossible to do oversight when the person who’s being questioned just lies outright, when the Atty Gen’l ignores your requests for information, and when every document in D.C. is marked “Secret” or “Top Secret”. BTW, was Clapper under oath when he appeared before the Senate?

  4. emptywheel says:

    @phred: Hospital confrontation was in 2004. It ties FAR more closely into the other revelation–the 215 order–than PRISM, I’m pretty sure. Working on that now.

  5. der says:

    Given that much of the national security state is privatized it’s the profiteering Jack Bauer’s sticking their noses into which server has the neighbors business that is more of an outrage. What constitution.

  6. William Ockham says:

    I think the point that Clapper is standing on is that metadata isn’t data. Clapper thinks that because they don’t collect the content of the phone calls and emails, they aren’t collecting data. It’s b.s., but that’s the position.

    Of course, the definition of metadata is “data about data”. Hard to claim it’s not data.

  7. Brian Silver says:

    I’ve always found the language about the program “targeting” international communications to lack credibility or meaning. I recall it from the early Patriot Act discussions and the exposure of the extent of data collection from the telcoms. We’ve heard it again in the last few days: they’re targeting international communications.

    It doesn’t mean anything! It’s something the FISA court needs, to the extent any of this is governed by court approval or supervision, to say “OK.”

    The fact it, they appear to be getting everything that goes through certain communications channels, transmission points, or whatever. Once you say they’re “targeting” international communications, then let’s say I make a call to a friend in Timbuktu. They want to know that. And then they want to know every other call that I make, in order to understand whether this is part of a network of communications in which the 2nd, 3rd, or 4th removed person in that net has also made a communication to somebody abroad who has communicated with somebody in Timbuktu. ALL of the intermediate circles and levels of communications are going to be captured.

  8. lefty665 says:

    EW, What do you think is up with Microsoft being the first on board with PRISM? Did the years of cooperation between the organizations just make it an easy place to start?

    What about individual machine OS level access? Microsoft could easily provide that by giving NSA their update database. OS is leased, not sold, no court order needed if owner (Msft/Google/Apple) agrees.

    General remote access settings would get there too. A one byte flag does it.
    User settings:
    0=no access
    1=allow remote access

    Reserved – not user addressable
    2=”special” access

    Believe I’d look for an arrangement with Intel on hardware access too, OOB especially.

  9. joanneleon says:

    Well I guess he’s the sacrificial lamb if they are putting him out front and Wyden is so clearly illustrating that he lied. Was he under oath?

  10. GKJames says:

    Baffling. First, Clapper says, “NSA does not voyeuristically pore through U.S. citizens’ e-mails.” The (telling) allusion to sex aside — hints of glassy-eyed, moist-lipped NSA types in front of computer screens in a darkened room, probably not too far off the mark — why wouldn’t the follow-up have been (A) that’s not what I asked you; I asked whether you COLLECTED DATA, not whether you pore through e-mails; or (B) fine, we’ll take that as confirmation that the NSA collects data on millions of Americans…? Time and again witless questioners let the government skate. Eons later comes the public debate about whether a witness was lying. Why? Isn’t the default setting that anyone from the national security apparatus is going to dissemble?

    Second, who in 2013 can be surprised that the government is collecting this information? You can bet that the bad guys have known all along, and that the government has known that they’ve known. Which means that the secrecy surrounding this — the breach of which Clapper finds “reprehensible” — can hardly be about keeping our “enemies” from knowing. It’s the American public above all that must be kept in the dark. THAT’s what’s reprehensible.

    Don’t like secret warrants? Get rid of the FISA court. Don’t like dragnets? Modify the Patriot Act. Don’t like getting smoke blown up your ass by a Clapper, learn how to cross-examine.

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