Obviously Bogus Clapper Exoneration Attempt 4.0

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: There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly. [After 6:38]

Almost immediately after the first Edward Snowden leaks proved James Clapper lied when he told Ron Wyden the NSA doesn’t collect data of any kind on millions of Americans, Clapper explained that he meant the NSA didn’t vicariously pore through Americans’ emails.

“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.

That is, his first response was about reading emails in a certain smarmy fashion; he did not apparently deny collecting them.

Then, with a bit more time to think up an excuse, he admitted to Andrea Mitchell that he had been “too cute by half” but didn’t really explain what semantic excuse he had invented for himself.

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.

[snip]

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]

Nevertheless, the implication, less than a week after Snowden’s first revelations, was that collecting Americans’ metadata doesn’t count until you access it, which seems to address the phone dragnet data (though would apply to incidentally collected US person data as well).

Perhaps because his Mitchell answer only increased the mockery, Clapper thought up a new answer, one he sent Senate Intelligence Committee Chair Dianne Feinstein 3 months after he lied to her committee.

I have thought long and hard to re-create what went through my mind at the time. In light of Senator Wyden’s reference to “dossiers” and faced with the challenge of trying to give an unclassified answer about our intelligence collection activities, many of which are classified, I simply didn’t think of Section 215 of the Patriot Act. Instead, my answer addressed collection of the content of communications. I focused in particular on Section 702 of FISA, because we had just been through a year-long campaign to seek reauthorization of this provision and had had many classified discussions about it, including with Senator Wyden. That is why I added a comment about “inadvertent” collection of U.S. person information, because that is what happens under Section 702 even though it is targeted at foreigners.

That said, I realized later that Senator Wyden was asking about Section 215 metadata collection, rather than content collection. Thus, my response was clearly erroneous–for which I apologize. While my staff acknowledged the error to Senator Wyden’s staff soon after the hearing, I can now openly correct it because the existence of the metadata collection program has been declassified. [my emphasis]

Note Clapper himself admits he spent time (and he suggests, though it’s not entirely clear, that it continued up to June) trying to think through what he had said. He also didn’t acknowledge that Wyden’s office had to call him on his lie. Which of course means he doesn’t say specifically what Wyden’s office said after he lied blatantly.

Clapper’s changing answers have only fed the impression (supported by many other Clapper comments) that he’s a liar. Which is probably why the NYT called him one in its call for amnesty for Edward Snowden.

Clapper’s office, however, has not given up hope of convincing us he’s not a liar. Today, ODNI General Counsel Robert Litt tried to refute the NYT’s claim he’s a liar.

Edward Snowden, Whistle-Blower” (editorial, Jan. 2) repeats the allegation that James R. Clapper Jr., the director of national intelligence, “lied” to Congress about the collection of bulk telephony metadata. As a witness to the relevant events and a participant in them, I know that allegation is not true.

Senator Ron Wyden asked about collection of information on Americans during a lengthy and wide-ranging hearing on an entirely different subject. While his staff provided the question the day before, Mr. Clapper had not seen it. As a result, as Mr. Clapper has explained, he was surprised by the question and focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate.

When we pointed out Mr. Clapper’s mistake to him, he was surprised and distressed. I spoke with a staffer for Senator Wyden several days later and told him that although Mr. Clapper recognized that his testimony was inaccurate, it could not be corrected publicly because the program involved was classified.

This incident shows the difficulty of discussing classified information in an unclassified setting and the danger of inferring a person’s state of mind from extemporaneous answers given under pressure. Indeed, it would have been irrational for Mr. Clapper to lie at this hearing, since every member of the committee was already aware of the program. [my emphasis]

As a threshold matter, when a crafty lawyer like Litt says his principal did not “see” the question, it says nothing about whether or not Clapper “knew” about the question. Usually, senior officials get briefed on such things, they don’t read them. Though they presumably are more likely to read letters from members of Congress, and Clapper had received and not fully responded to several related letters from Wyden already by that point, including some invoking Keith Alexander’s earlier lies about collection on US persons.

Which is one reason I’m intrigued that Litt seems to have added the claim that Clapper was “surprised” to the public record — I’m not aware of Clapper ever expressing such a thing. If he were surprised, it’d be especially problematic given his involvement in correspondence going back months.

But that “surprised” (apparent) invention allows Litt to claim that Clapper didn’t know what he was answering when he almost certainly did, given that he had been avoiding answering that question in unclassified form for months.

More interesting still is Litt’s warning about inferring a person’s state of mind. Clapper himself said he thought long and hard, three months after his lies, to recreate what he was thinking at the time. So how can Litt claim to know that Clapper didn’t lie, based on an assertion about what he was thinking (unless he told him what he was thinking, which I guess crafty lawyers do sometimes)?

Here’s the other thing. Perhaps Wyden was thinking only of one (the secret phone dragnet collecting data on hundreds of millions of Americans) or the other (the mostly unacknowledged backdoor searches on content collected “incidentally” on millions of Americans) NSA collection of any kind of data on millions of Americans. But his conversations have often linked the two (perhaps because the Intelligence Community uses metadata in part to decide which Americans’ content to go read without RAS?). And he might well be including the intentional collection of US person data via upstream collection (though there’s no reason to believe that includes millions of Americans).

But even if he was asking about incidentally collected (and then back door searched) US person data, Clapper’s first instinct was a flat “no.” It wasn’t until Wyden challenged him with the mock surprise he has had so much practice at affecting, “it does not?,” that Clapper retreated to his “wittingly” lie. And “wittingly” — even “inadvertently” — are different words than “incidentally.” One point of this Section 702 is to collect the contacts of suspected terrorists, including the Americans. That’s the intent; there’s nothing inadvertent about it (as people like Sheldon Whitehouse have made clear).

Moreover, Clapper’s first response — that they don’t voyeuristically read the emails they collect — assumes they do collect them. His first response assumes they intentionally collect content, but don’t necessarily access them all.

The NSA collects the content of millions of Americans “incidentally” (using their official euphemism), but there’s nothing unintentional or inadvertent or unwitting about that collection.

Even this fall-back lie is demonstrably a lie.

So nice of Robert Litt to confirm the NYT’s impressions on their Letters-to-the-Editors page.

Update: You’ve got a “pal” in principal error corrected per BS.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

19 replies
  1. P J Evans says:

    If Clapper didn’t know what he was answering, then he’s incompetent to hold the job – or any other, since he’d have to not understand English to miss what Wyden was asking.

  2. Diana Davies says:

    Litt quote: “While his staff provided the question the day before, Mr. Clapper had not seen it.”

    Thx for picking apart that “see”. Also the sentence makes it sound like [Wyden’s] staff failed to actually get the question to Clapper, a break in communication that should be laid at their door.

    All in all mendaciously lame.

  3. lysias says:

    Even if — which I do not believe — Clapper was surprised by the question and gave an unconsidered response, he had ample opportunity after the hearing to correct that response, and he did not do so.

  4. ess emm says:

    I remember DiFi on This Week with GS laughing at the thought that Clapper might have lied, he just mis-heard.

    Also, why wouldnt Clapper write the NYT himself, rather than have Litt do it?

  5. joanneleon says:

    @lysias: Also Litt says that his legal team realized immediately that Clapper’s answer was not true, so why didn’t they tap him on the shoulder, or ask for a quick break, and consult with Clapper so he could correct the record right there in the same hearing?

    None of these excuses are believable.

  6. Don Bacon says:

    As a liar, he’s in the correct administration.
    —“If you like your privacy, you can keep your privacy.”

    These clowns, including the head clown, all take an oath to protect and defend the Constitution. Instead they violate it, and it’s all downhill from there.

    Perhaps the chief law enforcement officer, the Attorney General, will step in.
    Just kidding.
    What could a lawyer possibly do about the law?

  7. ess emm says:

    And the NSA gives Bernie Sanders a big eff you with their response today about whether they collect MoC’s meta-data.

    Members of Congress have the same privacy protections as all US persons.

    It’s almost the same as Clapper’s first excuse, the NSA does not deny collecting it, they just dont pore over it voyeuristically (actually, maybe they do pore over it voyeuristically).

  8. bloodypitchfork says:

    quote:”The NSA collects the content of millions of Americans “incidentally” (using their official euphemism), but there’s nothing unintentional or inadvertent or unwitting about that collection.

    Even this fall-back lie is demonstrably a lie.”unquote

    And therein lies the reason I come here. Thank you Marci for your skill set in separating the wheat from the chaff. Gawd I pity your husband or children should they lie about anything though. :)

  9. What Constitution? says:

    That’s Robert Litt, Esq. — Clapper’s lawyer — stating what he and his client discussed and what his client “knew”, right? And what he and his co-counsel “knew” and what they said to Clapper that immediately advised him that the falsity of his statement was clear? So what part of this is NOT a waiver of attorney-client privilege? Prosecuting Clapper just got a whole lot easier, right? So I guess DOJ will certainly reassess its position and seek that indictment right quick, yes?

    The sanctimonious governmental rejection of clemency suggestions for Snowden even as their own pals go uncharged for serious felonies is not equivalent — these clowns like Litt don’t even recognize the possibility that a high official committing a crime is even cognizable as a crime in the first place, since that would involve some sense of accountability. Snowden acknowledges he did something that is considered objectively wrong, many just believe that there are higher principles that merit clemency; Clapper and Litt can’t get past the idea that when they lie to Congress, it’s just part of what they have a right do and isn’t subject to criticism in the first place. Puck that, puck them.

  10. lefty665 says:

    @ess emm: Or maybe they do pore over it, but not voyeuristically. Voyeuristically becomes a weasel word, a modifier that lets them make an intentionally misleading assertion that is broadly false but narrowly true. It is much like Marcy’s illustration of Litt’s apparent distinction between “see” and “knew”.

    Wyden had been playing cat and mouse with Clapper over this issue for quite some time. This time he got an outright lie from Clapper, in public and on the record.

  11. Michael Murry says:

    “All Cretans lie.” — Epimenides of Knossos (himself a Cretan)

    Truthful Cretan Liars

    I lied when I said that I spoke the truth,
    And I speak the truth when I say that I lied.
    I come from a land where they think it uncouth
    To utilize language that hasn’t yet died
    Because they prefer to sell War to their youth
    While shedding fake tears at the Peace they’ve decried.

    I tell you for sure that I mean what I say,
    And you must believe me ’cause you’ve got no way
    To know if from paths straight and narrow I’ll stray
    Whenever I want what you’ve got on your tray.

    I merely speak noises which I have observed
    Make people do just about any damn thing;
    While, still, for my own inner self I’ve reserved
    What I really mean by the sounds that I sing,
    Leaving up to my listeners what they have deserved
    For thinking they know why the words soothe or sting.

    My lies I support with true evidence scant;
    But since I regard you as one potted plant,
    I’m sure that you’ll swallow my self-serving rant
    Even though it consists of discredited cant

    I truthfully lie, and as falsely speak true
    While reason and ethics I ceaselessly flout.
    I’m Jabberwock captain of one hopeless crew
    Who followed me in where no one can get out.
    So breathe in the smoke that I’ve exhaled at you
    And lie down, saluting, the true lies I spout.

    Michael Murry, “The Misfortune Teller,” Copyright © 2010

  12. Dredd says:

    The wrongheaded and paranoid Powell Memo/Manifesto motivates many government policy issues which conflate foreign and domestic policy. For example, the doctrine that the Powell Manifesto evolved from was J.Edgar Hoover’s modus operandi.

  13. tryggth says:

    @ess emm: Wonder if Sensenbrenner January 10th date has anything to do with the timing and loquaciousness of Litt. Seems they have been looking at 18 USC 1001 closely.

  14. Nightstalker says:

    You know the real crapstorm for the NSA looming, besides Sen. Bernie maybe knowing something the public doesn’t before asking (since while I disagree with Senator Sanders on many economic issues, like any old lawyer or a younger one like Wyden he would never ask a question he didn’t already know the answer to) whether NSA spies on Congress and looks at their specific metadata? Since we know as well, the notion that 202, 703 area codes of Congressional members and their staffs are hardly just random meaningless disembodied numbers to the boys at Ft. Meade. It’s the guns.

    If the NSA is collecting ‘incidentally’ millions of credit or debit card transactions, that kinda implies they could be gathering up all Americans’ lawful firearms and ammunition purchases made via credit or debit card. Which if they chose not to discard the data, but instead to store it linked with the name of the credit and debit card user or even just the numbers, could easily be construed as criminal conspiracy to violate 8 U.S.C. § 921 et seq. (1986 Firearms Owners Protection Act) and other laws designed to bar a nationwide federal gun registry. Especially if NSA were sending Americans lawful firearms data and their illegal gun owner list to the BATF, DOJ, or even worse, laundering the data and storing it on foreign clouds of the gun-restricting “5Eyes” jurisdictions of the GCHQ/CSE in order to evade Congressional discovery of the registry.

    http://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act#Registry_prohibition

    However you EW readers may feel as progressives about gun control laws, the blowback for NSA’s staunch defenders on Fox News/other ‘Right wing’ outlets who purport to be ‘pro-2nd Amendment conservatives’, including ‘Accuracy in Media’s’ Clifford Kincaid and associates, would be a fearsome thing to observe. I don’t think Kincaid would ever dare show his face at a CPAC again for fear of being shouted down by angry gun-loving conservatarians. Not to mention calls from Texas or even Utah state lawmakers to perp walk the responsible NSA employees to the nearest county jails to NSA San Antonio or Bluffdale in the back of a state police cruiser…should they be able to find an ambitious federal prosecutor who’s ready to file charges despite DOJ scrambling to shush any case…

    Granted, given the pro-2nd Amendment sympathies of a large number of active duty military, including some in the SIGINT field, I doubt NSA would share such an illegal registry with more than a handful of employees. Most likely it would be done at the highest and most compartmentalized levels. But basically if exposed the NSA would have to denounce the gun purchase registry op as a ‘rogue operation’. Couldn’t have anyone getting the idea this White House, or even previous Administrations maybe ordered it…

    If the NRA or Larry Klayman can’t get discovery or any answer to the direct question, “What does NSA do with data it ‘incidentally’ collects on Americans lawful firearms purchases?” with their lawsuits, maybe Sen. Ted Cruz or some other ambitious tea party Senator can in open hearing. At the very least, the next NSA director or even the outgoing Clapper/Alexander would have to clam up and decline to answer the question, which in of itself would tell us a lot. Then you can expect Bob Cesca and the other Obamabot #TeamNSA members to scream how dare Cruz or other gun crazed teabagger Senators demand NSA disclose its program to keep guns out of the hands of terrorists! Etc etc.

    Last but not least, I certainly hope all Mexican police units the NSA San Antonio elite hacker unit profiled in Der Spiegel recently may be hacking against keep their crime scene firearm serial number records on paper. Just in case the BATF or DOJ wanted the NSA to go into the Mexican databases and change the firearm serial number of a Mexican crime scene weapon so it couldn’t be linked to Operation Fast and Furious…

  15. P J Evans says:

    @Nightstalker:
    Why haven’t they been able to find people with personal arsenals before they go off the rails and start shooting, if they have all that information? (Part of it is that the credit-card information doesn’t include what you bought, as anyone who’s looked at their card statement can tell you.)

  16. Nightstalker says:

    “Why haven’t they been able to find people with personal arsenals before they go off the rails and start shooting, if they have all that information?” A fair question PJ Evans. Maybe the Powers That Be aren’t so much interested in stopping mass shootings cold, particularly by people for whom it’s already illegal to own guns (felons, the certifiably insane) as they are in exploiting tragedies to push the agenda? Given the spike in suicide rates when people are on SSRI inhibitors, I’m willing to have the conversation about people voluntarily keeping firearms out of their homes if they or someone in their household is on anti-depressants, mostly because the odds of them (especially combat vets) killing themselves are much greater than if a firearm is not present. But that’s separate from the fundamental 2nd Amendment right or the active efforts by the VA to engage in backdoor gun grabbing by disarming vets who have never been diagnosed with PTSD…behavior that perversely discourages vets from seeking treatment in the first place (think about it, if you were a combat vet who happened to be from Detroit or some other very dangerous city where concealed carry saves lives)!

    http://www.emptywheel.net/2014/01/04/obviously-bogus-clapper-exoneration-attempt-4-0/#comments

    Or maybe the timing simply isn’t right for Katrina-style confiscation, nowing how few volunteers they would have for that mission, and instead they have to take the python approach — and try to disarm veterans first and in the bicoastal areas like California, New York, or the (alleged, especially if you’re into all the DIA artwork weirdness) backup/secret U.S. capitol of Denver in Colorado.

    And you would be correct, that the purchase receipts/lines on credit card statements alone would not be sufficient to show what Joe BitterClinger Gun Owner is buying. They would have to be either guesstimated or crosschecked with BATF records that are supposed to be used for background checks only and then destroyed within 24 hours under the provisions of the 1993 Brady Act.

    And I misspoke about Klayman. Since his lawsuit is about metadata and metadata only, unless he gets discovery that the NSA’s metadata collection includes all credit and debit card transactions (presumably that the NSA would argue are not linked to names and addresses), I don’t think he will be able to pursue the gun angle questions at the appellate or SCOTUS level. Even the federal judge who ruled in Klayman’s favor declined to comment on whether Klayman’s claims that the NSA had been ‘messing with’ he and his clients via electronic harassment, texts sent from the phone number of the fallen Navy SEAL Michael Strange to his gold star family, etc. Not that you’ll ever see #TeamNSA dare to discuss the individual abuse allegations, including the Doug J. Hagmann PI affidavit that NSA Bluffdale reached out and let him know they were listening on May 30, 2013…when John R. Schindler was confronted about the Hagmann affidavit, incidentally, he started tweeting out “CHEMTRAILS” in all caps. Like a child covering his ears saying na na na na na I can’t hear you…

    http://canadafreepress.com/index.php/article/55649

    “On May 30, Hagmann, a U.S. citizen, after having a phone conversation with another internationally known media type, also a U.S. citizen, regarding various government activities, who were both in the U.S. at the time, upon ending their conversation and hanging up, Hagmann received a strange ringed phone call. “Curious because of the ring tone, he looked at the caller ID displayed and was startled to see the following on the telephone caller ID screen: “UT NSA DATA REC CTR.” He picked up the receiver and heard the following message in a male voice:

    “…your notification that the Utah NSA Data Recording Center successfully captured this landline communication under file # [I was unable to copy the numbers as they were spoken quickly]. Refer to senior duty officer for access code under file #[this appeared to be a different alpha-numeric sequence].”

    http://www.nytimes.com/2013/12/18/us/politics/larry-klayman-plaintiff-in-nsa-case-savors-victory.html?_r=0

    “Judge Leon wrote that Mr. Klayman responded during arguments in court that the N.S.A. was “messing with me.” The judge added: “Unfortunately for plaintiffs, none of these unusual occurrences or instances of being ‘messed with’ have anything to do with the question of whether the N.S.A. has ever queried or analyzed their telephony metadata.”

  17. _decius_ says:

    Has anyone else ever lied under oath about domestic surveillance? This program has been going on for many years, and it was disclosed in the USA Today in 2006. Was 2013 the first time anyone was ever asked about it?

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