SECRECY NEWS from the FAS Project on Government Secrecy Volume 2014, Issue No. 1 January
Director of National Intelligence James R. Clapper has been widely
criticized for making a false statement at a March 2013 hearing of the
Senate Intelligence Committee. What has gone unremarked, however, is the
fact that the Committee permitted that statement to stand uncorrected.
Sen. Ron Wyden asked DNI James Clapper at a March 12, 2013 hearing “Does the
NSA collect any type of data at all on millions or hundreds of millions of
DNI Clapper replied “No, sir.” He added “Not wittingly. There are cases
where they could, inadvertently perhaps, collect — but not wittingly.”
Based on this exchange, and in light of the revelations to the contrary made
by Edward Snowden, some have concluded that DNI Clapper “lied to Congress,”
as the New York Times editorial board put it last week. Some go further to
suggest that the DNI should be prosecuted and imprisoned, as Sen. Rand Paul
did yesterday.
It is of course wrong for officials to make false statements, as DNI Clapper
did when he denied that NSA collects “any type of data at all” on ordinary
Americans. But did the DNI actually “lie to Congress”?
In ordinary usage, lying usually connotes an intent to deceive. In this
case, DNI Clapper could not have intended to deceive the Senate Intelligence
Committee because the true answer to Senator Wyden’s question was already
known to Senator Wyden and to all the other members of the Committee (as
noted the other day by ODNI General Counsel Robert S. Litt). Committee
members could not have been misled by the DNI’s response, and it makes no
sense to say that he intended to mislead them.
What remains true is that others — especially attentive members of the
public — were deceived by the DNI’s statement. If DNI Clapper “lied,” it
was to them, not to the Senate Intelligence Committee, that he did so. But
the Committee permitted that deception to occur, and to persist, and so it
must take its share of responsibility for that. Yet unlike the DNI (who
apologized, several months after the fact, saying he misunderstood the
question), the Committee has not acknowledged any failure on its part.
When Senator Wyden posed his question in open session, he was evidently
attempting to corner the DNI and to compel him to involuntarily reveal
classified information about the NSA bulk collection program. At the time,
it seemed to be a clever rhetorical maneuver. Even if the DNI refused to
respond or requested to answer the question in closed session, that would
have indicated that something pertinent was being concealed.
However, by answering falsely, the DNI turned the tables on Senator Wyden
and the Senate Intelligence Committee. Whether by design or not (almost
certainly not), the DNI’s response challenged the Committee to make its own
choice either to disclose classified information about the NSA program — in
order to rebut and correct the DNI’s answer — or else to acquiesce in the
dissemination of false information to the public.
(There was another conceivable option. Without revealing specific classified
information, the Committee could have issued a statement that the record of
the March 12 hearing included certain erroneous and misleading statements,
and that it should not be relied upon.)
As it turned out, the Senate Intelligence Committee made exactly the same
choice that DNI Clapper is accused of making. The Committee evidently
decided that national security classification trumped any obligation it had
to produce an honest and accurate public record. As a result, the Committee
itself became complicit in an act of public deception.
This is deeply unfortunate. It means that unclassified Committee statements
and publications cannot be granted an unqualified presumption of accuracy or
good faith. With the Clapper gambit, the Senate Intelligence Committee moved
beyond the familiar practice of secrecy and into the propagation of false
and misleading information.