James Clapper Hails Checks and Balances While Treating Oversight “Too Cute by Half”

I’ve been citing bits of this interview between James Clapper and Andrea Mitchell here and there, but the whole thing needs to be read to be believed.

But the quick version is this. Mitchell asks Clapper whether “trust us” is enough, given that some future President or Director of National Intelligence might decide to abuse all the programs in question. Clapper responds by celebrating our constitutional system’s checks and balances.

ANDREA MITCHELL:

The president and you and the others in this top-secret world, are saying, “Trust us. We have your best interests, we’re not invading your privacy, we’re going after bad guys. We’re not going after your personal lives.” What happens when you’re gone, when this president or others in our government are gone? There could be another White House that breaks the law.

There could be another D.N.I. who does really bad things– we listened during the Watergate years to those tapes. With the President of the United States saying, “Fire bomb the Brookings Institution.” You know, what do you say to the American people about the next regime who has all of these secrets? Do they– do they live forever somewhere in a computer?

JAMES CLAPPER:

No, they don’t live forever. That’s a valid concern, I think. You know, people come and go, presidents come and go, administrations come and go, D.N.I.’s will come and go. But what is, I think– important about our system is our system of laws, our checks and balances.

You know, the– I think the founding fathers would actually be pretty impressed with how– what they wrote and the organizing principles for this country are still valid and are still used even in you– to– to regulate a technology then, they never foresaw. So that’s timeless. That– those are part of our institutions. Are there people that will abuse those institutions? Yes. But we have a system that sooner or later, mostly sooner these days, those misdeeds are found out. [my emphasis]

But when, earlier in the interview, Mitchell asks him about his lie to Ron Wyden, here’s how he answered.

ANDREA MITCHELL:

Senator Wyden made quite a lot out of your exchange with him last March during the hearings. Can you explain what you meant when you said that there was not data collection on millions of Americans?

JAMES CLAPPER:

First– as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked– “When are you going to start– stop beating your wife” kind of question, which is meaning not– answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.

And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers– of those books in that metaphorical library– to me, collection of U.S. persons’ data would mean taking the book off the shelf and opening it up and reading it.

ANDREA MITCHELL:

Taking the contents?

JAMES CLAPPER:

Exactly. That’s what I meant. Now–

ANDREA MITCHELL:

You did not mean archiving the telephone numbers?

JAMES CLAPPER:

No.

ANDREA MITCHELL:

Let me ask you about the content–

JAMES CLAPPER:

And this has to do with of course somewhat of a semantic, perhaps some would say too– too cute by half. But it is– there are honest differences on the semantics of what– when someone says “collection” to me, that has a specific meaning, which may have a different meaning to him. [my emphasis]

I’m grateful that Clapper himself describes this ploy as “too cute by half,” because I’ve been struggling for a description that didn’t involve potty mouth words.

Nevertheless, the semantics at issue have nothing to do with the word “collection” (except in a way I’ll describe in a follow-up post). Rather, it has to do with the definition of “data.” Elsewhere, Clapper is clinging to the fact that the Section 215 er, um, collection involves “just metadata.” And yet here, when asked specifically about “any type of data,” Clapper pretended that data meant content.

Mitchell then went on to ask Clapper about whether the rest of Congress had been adequately informed about the NSA programs, and he responded, in part, by pointing the important role the Intelligence Committees serve in that process.

ANDREA MITCHELL:
Do they– do they know what they’re voting on?

JAMES CLAPPER:
I– I trust so. Obviously, our primary congressional interlocutors are– are two Intelligence Oversight Committees, both in the House and the Senate.

Remember, he has just said that he treats the Intelligence Committees, his primary congressional interlocutors, as “too cute by half.”

Which brings us to the point, much later in the interview, when the man who explains away his lies to his primary interlocutors in Congress as “too cute by half” semantics, admits how important personal trust is to keeping secrets.

ANDREA MITCHELL:

And are new procedures being put in to try to protect against this flow of leaks?

JAMES CLAPPER:

Well, we’ve– we’re constantly trying to institute new procedures. I’m in the process of attempting to institute some practices and policies that will try to stem the hemorrhage of– leaks, leaking that we’ve– we’ve had in recent years. But this is a tough problem because when it boils down to it, we operate, even though we have clearances and we have skiffs and– and secure areas, when it all boils down to it, it’s all about personal trust.

And we’ve had violations of that personal trust in the past and we will continue to have them. And all we can do is learn lessons from what we– when we find out what caused– a revelation like this and make improvements and go on.

James Clapper, who has treated an important check on his power as “too cute by half”–and with it, effectively misinformed Congress and the American people, making it impossible for elections to serve as another of those checks our founders laid out–now wonders why someone violates the personal trust of a security agreement. 

Congress, especially the members of the Intelligence and Judiciary Committees who have voted against key limits on these powers, are clearly complicit in these programs.

But before you even get there, you’re at the point where Executive Branch officials have bypassed the checks and balances of our Constitution by engaging — by James Clapper’s own admission! — in “too cute by half” semantic games to keep Congress and the public misinformed.

Well before you get to the violation of the personal trust of a security clearance, you’ve got these lies masquerading as cute semantics. No wonder we have leaks.

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.

22 replies
  1. What Constitution says:

    Well, he made it clear he only lies when it would be inconvenient for him to tell the truth. Good to see there are some rules here.

  2. TomVet says:

    It’s ALL about semantics. And legions of lawyers with truckloads of weasel words to explain everything in just the right way. There is also a large dollop of shell-gaming going on to shift the blame among the civilian contractors, the providers, and the various nefarious three letter agencies, all of whom have differing levels of restraints to apply (or not) as the data moves between them. And so, naturally, ample deniability along the way.

    See here for example:
    http://balkin.blogspot.com/2013/06/a-nifty-legal-dance.html

  3. lefty665 says:

    Frank Church, who in 1975 first raised the alarm at the agency’s sprawling tentacles. During a series of hearings into the work of the intelligence agencies, he warned that the NSA’s magnifying glass could be turned inwards on the American people.

    “I don’t want to see this country ever go across the bridge,” he said. “I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.” http://www.guardian.co.uk/world/2013/jun/06/national-security-agency-surveillance

    Church’s viewpoint was common within NSA at that time: NSA’s tools enabled tyranny if turned inward.

    We have crossed that abyss, turned the magnifying glass inward and the magnification up 100x. The line is “Trust us”, and oversight is “too cute by half”. Snowden is right, tyranny is just a policy change away.

    Beef Hollow Rd goes live this year. Are you ready?

  4. JamesJoyce says:

    @lefty665: “Church’s viewpoint was common within NSA at that time: NSA’s tools enabled tyranny if turned inward.”

    Ike’s Warning Of Military Expansion, 50 Years Later

  5. orionATL says:

    General james clapper and winning the media war:

    “… The balance between public affairs and information operations is a delicate one, as indicated in the relevant US Army Field Manual, Public Affairs Tactics, Techniques and Procedures. “Information operations,” notes the manual, “involve a variety of disciplines and activities [including] information campaigns.” Public affairs “support to [information operations] requires . . . synchronization of efforts with other organizations and agencies to ensure themes and messages are consistent and deconflicted.” The language in the manual is instructive: public affairs is not seen as an entity in itself, but as a “related activity” of information operations.10

    84/85

    The US military, as the manual demonstrates, is acutely aware of the importance of media portrayal of conflict, and has developed an array of techniques to affect that presentation. Public affairs staffs begin their support of information operations by drafting a Public Affairs Estimate…

    Lying outright to the media may not, in many circumstances, make much sense, but controlling the flow of information emphatically does, and the purpose of the public affairs staff is precisely that—to control the dissemination of information so as to maximize the military and political advantage to US forces.

    Of course, outright lies do have a place on the battlefield. A media-savvy commander will also seek to use the media to directly affect the enemy’s plans, as part of a military deception operation. The current US Army field manual on information operations provides further details on the military advantages that can be gained from skillful manipulation of the media. Military deception, it notes, is “a fundamental instrument of military art. Its ultimate goal is to deceive adversaries and others about friendly force dispositions, capabilities, vulnerabilities, and intentions.”12 The manual goes on to describe the mechanism through which an enemy can be deceived through the construction of “a plausible, but false, view of the situation, which will lead the deception target into acting in a manner that will accomplish the commander’s goal. Once the story is completed, the [Deception Working Group] determines the deception means necessary to portray the events and indicators.”13

    The manual, perhaps understandably in an unclassified text, does not dwell explicitly on the use of the media as a means of disseminating the deception’s story. To be sure, there are also a wide variety of non-media-related means of deceiving opposition forces. But the manual does point to one episode of military deception through the use of the media: the Egyptian crossing of the Suez in 1973, which it offers as an example of “Conditioning an Adversary.” The Egyptians, it notes, “used deceptive measures and a broad range of centrally directed and controlled deception events involving political and military activities. These included . . . publishing reports in the press that officers would be allowed leave for the annual hajj pilgrimage.”14

    Whether for purposes of military deception or more broadly in an effort to control the public and elite perception of a conflict, the US military has a keen interest in influencing how the media perceive the events on the battle-

    85/86

    field…”

    The Media as an
    Instrument of War

    KENNETH PAYNE

    © 2005 Kenneth Payne

    From Parameters, Spring 2005, pp. 81-93.

  6. Cujo359 says:

    Sorry if I missed this somewhere, but was Sen. Wyden one of the congresspeople who attended the briefings on what we now know as PRISM? Might explain the “too cute” nature of that question if he did – he could have been trying to get Clapper to admit to something that NSA had briefed him on (or something Wyden thought he’d been briefed on), and Clapper didn’t oblige.

  7. edge says:

    Clapper; When he asked if we ‘collect’ data, I thought he meant a definition of collect that you will not find in any dictionary on the planet.

  8. john francis lee says:

    Our country is in the hands of a criminal enterprise which is going to try to thumb its nose and tough it out …

    The greatest fear I have for the outcome of these disclosures is that nothing will change. People will see in the media all of these disclosures, they’ll know the lengths that the government is going to, to grant themselves power unilaterally, to create greater control over American society and global society, but they won’t be willing to take the risks necessary to stand up and fight to change things.

    … we’ve all got to start acting as Edward Snowden has done. We have to <replace our 546 corrupted 'representatives' and Washington with new people from among ourselves. None of the current batch, neither of the present 'parties', has any of our interests at heart or in mind at all.

  9. thatvisionthing says:

    leaky skiffs

    JAMES CLAPPER:

    Well, we’ve– we’re constantly trying to institute new procedures. I’m in the process of attempting to institute some practices and policies that will try to stem the hemorrhage of– leaks, leaking that we’ve– we’ve had in recent years. But this is a tough problem because when it boils down to it, we operate, even though we have clearances and we have skiffs and– and secure areas, when it all boils down to it, it’s all about personal trust.

    Heh. I know emptywheel has talked about SCIFs before (*), and so has Daniel Ellsberg:

    http://scotthorton.org/2013/03/20/32013-daniel-ellsberg/

    Daniel Ellsberg: Aside from the fact that [Bradley Manning] was in a Sensitive Compartmented Information Facility, a SCIF, which in fact means something which mainly deals with material higher than Top Secret. That’s why it’s called “sensitive compartmented information.” It’s higher than Top Secret. It’s communications intelligence. It’s covert operations. It’s reconnaissance of various kinds. He had access to all of that, put none of it out. I could say I wish he had put some of it out, maybe, but anyway he didn’t.

    (* top result on searching SCIF here:

    http://www.emptywheel.net/2012/06/25/pro-drone-leaks-from-the-leak-witch-hunt-committees/

    Finally, Chambliss, the boss of the likely sources out there bragging about how unqualified they are to conduct intelligence oversight, even while boasting about the cool videogames they get to watch in SCIFs, appears to want to toot his horn rather the conduct oversight.

    )

    I think it was JFK who said the ship of state leaks from the top. That was when victory had many fathers and defeat stopped on his desk. Now we just have nameless pointless leaky skiffs, how grand we have become. And I guess if you write the word down wrong, then the right word was never even said, and the thing (not) named never even existed. How… trustworthy… uh… no, some other word… casting about…

    What a world. I guess.

  10. jo6pac says:

    @john francis lee: The spin around the net is amazing and what he says about dropping through the hole in the floor may come true, pretty sad.

    I agree with the plan of removing all elected peoples but unless you take all the money out of the system it will just return to it’s normal criminal self. We knew after the Church investigations they would just go deeper underground and be even meaner next time they get caught.

  11. Cujo359 says:

    Hmm. Looks like this explicitly answers my question. Wyden was at a Sec. 215 briefing on 29/3/12. So, it’s a good guess that Wyden was asking Clapper about something he heard or thought he heard in a briefing, w/o going into sensitive specifics…

    EDIT: No, wait. That briefing was two weeks after the hearing, which was on March 12. Either he heard about it at one of the earlier briefings (as part of the one of the earlier group briefings), or he heard about it elsewhere, or he was just guessing, or he really was being “too cute” …

  12. lysias says:

    @lefty665:

    Church’s viewpoint was common within NSA at that time: NSA’s tools enabled tyranny if turned inward.

    You’re right. I pulled a lot of reserve duty at NSA in the late 1970’s and the 1980’s, and the limits of the governing regulation, USSID 18, were taken very seriously at the time.

  13. lysias says:

    @jo6pac: Elections have proved to be a very flawed way of choosing representatives. We need to adopt the Athenian system of choosing them by lot from among the whole citizenry.

  14. Cregan says:

    This is why “Congressional Oversight” as some excuse or brake on the activity is a joke.

    Every administration treats congressional oversight as a nuisance and something to be avoided.

    If you mean committee oversight, then you are meaning a small number of people in secret deciding the rights of the entire nation.

    Whether you think the IRS scandal is big or small, it shows the potential when anyone decides they want to abuse what information they do have.

  15. lefty665 says:

    @lysias: Thank you.

    As you also know, those discussions often concluded with a personal declaration, a variation on “Not on my watch”, “Over my dead body”, or “Not in my lifetime”.

    Most of that generation is gone. I expect they can be heard all the way to the White House spinning in their graves in Arlington. Sure wish Gen. Odom was still around to get his two cents worth in.

    Those very sharp tools are now pointed aggressively inward. We have crossed the abyss. “Trust us” does not work. It is a profoundly inadequate platitude, not a constructive response.

  16. GKJames says:

    “[H]onest differences on the semantics.” Really? Isn’t it in fact about the underlying mind-set of the national security apparatus which resents the hell out of even having to go through the motions of meaningful Congressional oversight by Congress? (Of course, Congress obliges by doing nothing more than go through the motions on oversight, but that’s a separate issue.) The word games that result from that resentment aren’t differences, let alone honest ones. They’re a deliberate effort to hide — from the public on whose behalf this is all purportedly done — what the Executive is doing.

  17. katie Jensen says:

    @john francis lee: YEEEEP. We’ve been had by an economic terrorist attack in which our richest americans were paid and paid well. This works to keep the power pacified as the country slowly unravels and sinks down the hole.

  18. Ken Muldrew says:

    @lysias: The Athenians didn’t choose representatives by lot, they actually governed by lot. Representative democracy was an American invention that was developed because the founding fathers knew perfectly well that positions of governance belonged with the aristocracy; the notion that the rabble could decide matters of state was laughable. Yet they had some difficulties with deciding how sovereignty could be derived in the absence of royalty. The clever solution was to allow the rabble to elect representatives from the class of propertied males, keeping governance in the hands of the aristocracy while claiming sovereignty from the will of the people.

  19. orionATL says:

    @lefty665:

    Thanks to you both.

    There was a time of honor,

    Before pure political and career calculations became the operative moral standard.

  20. lefty665 says:

    Thanks EW, I have not been able to get beyond “potty mouth words”.

    For many decades semantics have been the key for Congress to get straight answers out of the intelligence community. Ask the right question, get the right answer. What seems to have changed is Congress conniving to not get the right answers, and colluding with dissembling, like Clapper’s, that has crossed the line from careful parsing to outright lies.

    It seems coincident with crossing the line (Frank Church called it an abyss) from NSA pointed outward to inward. Might selected congress critters have been given personal examples of how disparate information that was being “collected” could be integrated to provide a more complete picture of a targets activities?

    That could certainly help Congress understand the effectiveness of the programs, the value in continued appropriations, and provide an incentive to cooperate in keeping it all secret. All in the spirit, as DiFi has said, of protecting the country from “treason”.

    Could Clapper’s observation that he was having severe intestinal distress (shit fit?) be more a threat intended to keep Congress in line than a physical description of a personal problem?

    It worked for John Edgar when he had the mandate for domestic collection.

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