Prosecute or Not Prosecute?

Should Intelligence Chief Clapper Be Prosecuted for Lying to Congress?

By Fred Fleitz – 12/10/13

Congressman Jim Sensenbrenner, R-Wis., an author of the Patriot Act, is calling for Director of National Intelligence James Clapper to be prosecuted for lying to Congress last March in response to a question by Sen. Ron Wyden, D-Ore., about alleged NSA snooping on Americans.

nsa-surveillance-shutdownjpeg-08dfb_s160x110(Washington Times online, Testimony Oct. 2, 2013)

On March 12, 2013, Sen. Wyden asked Director Clapper during an open Senate Intelligence Committee hearing, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper answered “No sir. Not wittingly.”

Leaks to the news media over the summer by Edward Snowden that NSA was collecting huge amounts of cellphone metadata of U.S. citizens as well as data on their Internet activity indicated that Clapper’s answer was not accurate and led to claims that he lied to Congress.

Clapper later apologized for his answer and said he gave “the least untruthful answer” to a question that could not be answered in an open, unclassified hearing. Clapper described Sen. Wyden’s query as a “how long have you been beating your wife” question.

Clapper also reportedly offered to resign after the Snowden leaks appeared to contradict his answer to Wyden.

Sensenbrenner has rejected Clapper’s apology, telling The Hill, “Lying to Congress is a federal offense, and Clapper ought to be fired and prosecuted for it.”

Sensenbrenner’s call to prosecute Clapper is part of his campaign to win support for legislation he and Sen. Wyden are pushing to prevent NSA from engaging in the bulk collection of cellphone records.

Senate Intelligence Committee Chairwoman Diane Feinstein, D-Calif., and House Intelligence Committee Chairman Mike Rogers, R-Mich., strongly oppose this legislation because they believe the NSA program in question has been subject to robust congressional oversight and has been a crucial tool in fighting terrorism. Both committees are considering legislation to tighten up the recently revealed NSA programs to reassure the American people but not to halt or limit them.

So did Clapper lie to Congress? Should he be prosecuted?

Based on my experience working for the CIA and the House Intelligence Committee staff, my answer to both questions is absolutely not.

I concede Clapper’s answer was inaccurate and that he should not have said this. But Wyden’s question was not intended to obtain information that he or any other member of the intelligence committee did not already know. It was a trap set by Wyden to expose and stop a program he has long argued against during classified intelligence committee meetings.

Since Wyden could not convince the majority of his intelligence committee colleagues to stop the NSA collection program, he tried to manipulate a rare public intelligence committee hearing to get Clapper to reveal information about this program to give him an opening to publicly oppose it.

Clapper’s staff reportedly knew about Wyden’s question in advance and should have prepared him for it. I understand what Clapper was going through when Wyden cornered him on this issue. Clapper knew that while NSA was collecting huge amounts of cellphone metadata, this program is well-monitored, legal, and is not being used to violate the privacy of Americans. He also knew that revealing the existence of the NSA program could severely compromise its effectiveness to protect the America people.

Clapper should have passed on Wyden’s question and offered to answer it in a closed session, but he knew such an answer would appear to confirm the question’s premise that NSA was collecting data on “millions or hundreds of millions of Americans.”

Clapper’s answer was a mistake but in my view Sen. Wyden is much more at fault. His question was a shameless ploy to abuse an open Senate Intelligence hearing to force a senior intelligence official to reveal classified information on a program that Wyden opposed. This type of behavior is why the Senate and House intelligence committees are “select” committees — to keep partisans like Ron Wyden off.

Congressman Sensenbrenner did a great service for his country in helping draft the Patriot Act. I understand his concerns about the NSA cellphone metadata program in light of the sensationalistic (and largely inaccurate) media stories on the Snowden leaks. But I do not understand why he is ignoring the counsel of House Intelligence Committee members who have been fully briefed on this program and believe it is legal and is not violating the privacy rights of Americans.

Neither the House or the Senate Intelligence Committee nor the Obama administration is calling for Director Clapper to be prosecuted for lying to Congress. They know what really happened last March: Clapper made a mistake in response to a spurious question by Sen. Wyden that should not have been asked

If Congressman Sensenbrenner wants to hold public officials liable for lying, he should focus on the real and serious lies by Obama officials on Obamacare, Benghazi, and the flawed deal on Iran’s nuclear program and not a distinguished U.S. civil servant and veteran like James Clapper who was put in an impossible spot by a left-wing Democratic senator trying to make headlines.

Fred Fleitz served for 25 years with the CIA, the State Department, and the House Intelligence Committee staff. He is currently Chief Analyst with, Newsmax Media’s global intelligence and forecasting service.

~~ OO ~~

Clearly there are two sides to this particular issue.

I confess, there are moments when my frustration leads me to wanting to see someone, anyone prosecuted in this administration.  I would like to see this to set a precedent.  But that doesn’t dominate my evaluation on issues.

So I am asking you, the reader, to comment on this article.  It will help me in evaluating the issue.  And I thank you for your willingness to help.

Mrs AL

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20 Responses to Prosecute or Not Prosecute?

  1. Clyde says:

    Good post, and a tough call. Since EVERYONE in this administration LIES through their teeth on EVERYTHING, the question is WHERE does one START the firings at ? I tend to lean towards firing this clown, simply based on the FACT that if you, or I, or any other REGULAR citizen lied to CONgress, we WOULD be facing at the LEAST contempt charges. Governemnt officials should be held to NO LESS a standard.

  2. In response to Clyde’s “where does one start”..the first one to get caught! That’s where. And you keep going until they’re all busted, one at a time. Cuff n stuff on the spots and drag ’em off to the brig. No more bullshit AT ALL!

    Sorry Clyde…this frosted my Wheaties. NO ONE IS ABOVE THE LAW!!!

    • Mrs AL says:

      Doesn’t that beg the question, who was the first one to get caught lying? This administration is full of skirters and word parsers. And many of them have been caught pulling this whoha from practically day one of this administration.

      As the old saying goes, when your Wheaties get frosted, buy Frosted Flakes instead.

      • It really doesn’t need to be long excavation as to who said what or when. Just, starting with a certain date, anyone that lies gets dragged off. Simple.
        Then they can be hung and tried (order is optional)

    • Clyde says:

      Nothing I said would indicate otherwise, HEA. Couldn’t agree with you more. Just applying to Mrs. Al’s query the CURRENT day situation, was all.

  3. Buck says:

    I gotta hang with Clyde on this. But so long as we have a bunch of sissy-la la’s running Congress it ain’t going to happen.

  4. Kathy says:

    This makes me think of Garnet’s Obama Scale for lying. It’s a great way to measure lies, but maybe we need to add categories. Now it depends on who you lie to. If you tell a lie to the American people, it’s bad, but if you tell a lie to Congress, it’s horrendous.

    If they start prosecuting all the people who’ve lied to Congress, they’re going to have to back up quite a ways and put the whole lot of them in jail. Let’s start with Hillary.

    Once you’re 5-6 years old, and know lying is wrong, then it becomes punishable. The rest of us suffer the consequences if we tell a lie, they’re no different. A lie is a lie.

  5. BrianR says:

    Well, contrary to what others have written, I don’t find this a “tough call” at all.

    The article’s author wrote: “So did Clapper lie to Congress? Should he be prosecuted? Based on my experience working for the CIA and the House Intelligence Committee staff, my answer to both questions is absolutely not.”

    Well… based on MY experience as an Army Intelligence agent and the son of a founding member of the CIA, I think that author is full of crap. Clapper clearly lied. He even admits doing so. Regardless of the congressman’s “motivation”, he has the authority to pose those questions, and Clapper was obligated and bound by law to answer truthfully. He should be fired, prosecuted and imprisoned. Period.

    If government agencies and bureaucrats can decide for themselves when it’s okay to lie to Congress, the whole idea of “congressional oversight” is dead. It’s bad enough that we have secret FISA courts (as I’ve written at my own blog), and “closed hearings” on other matters. This government is still responsible to THE PEOPLE, meaning us citizens. No congressional hearings should be “closed” except under the MOST unusual of circumstances, meaning that the intel being disclosed would IMMEDIATELY jeopardize current and ongoing ops with agents’ lives at immediate risk. PERIOD. And I don’t mean “period” like Obozo uses it.

    How does disclosing the wiretapping of every law-abiding citizen put anyone’s life at risk? Answer: it doesn’t.

    Clapper’s a felon in my book. Snowden’s the patriot in this play (as I’ve also written).

    • Mrs AL says:

      Thanx for adding your background to your comment, BrianR. It’s helpful.

      I think Congressional Oversight was lost to the ages some time ago. When the government grows so large and there are so many agencies, etc to monitor, the electeds in Congress can’t do it.

      As for your views on Clapper, thanx for adding more food for thought to my plate.

      • BrianR says:

        If congressional oversight has been “lost to the ages”, it’s because of people like Clapper and the idiot who authored this article.

        It’s time for it to be fully restored, otherwise we’re going down the exact same path as Hitler’s Germany.

  6. CW says:

    I think the first question that has to be asked is whether or not the gov’t has the right to classify, i.e. keep secret, certain information. If the answer is “yes,” then the next question is what is the responsibility of people entrusted with classified information? Are they, or are they not, obliged to maintain the secrecy? What are the potential consequences for saying that individuals who swear an oath to guard classified information should view the oath as flexible, i.e. subject to their personal opinions as to whether or not the information should be secret? These broader questions should be answered before debating any individual case.

    Like the author I don’t understand why Clapper answered the question at all instead of saying that the question delved into classified info and couldn’t be answered in an open hearing. Apparently he wasn’t prepared for the question and opted to lie rather than reveal classified info. Would I rather have someone lie than reveal classified info? Would I rather have them reveal classified info vs. lie? That’s not an easy question to answer, IMO. If you say it depends on the information, then again we have to deal with the question of whether or not people entrusted with classified info are free to decide what secrets to keep and what to expose.

    Frankly I think what Wyden did was kind of cowardly. If he wanted to expose what was going on at the NSA, why didn’t he just hold a press conference and do it himself? I assume he chose not to do it that way because he didn’t want to put HIMSELF at risk, perhaps jeopardizing his standing on the committee and his future access to other committee positions that deal with classified info. Instead he chose to maintain the secret himself while trying to get Clapper to reveal it.

  7. Mrs AL says:

    I am mucho appreciative of your analysis, CW. Great food for thought here.

    The issue of “classified information” is a tricky one indeed. What was fascinating back when he was testifying was Clapper’s fiddling with his head with his fingers. Clearly he was under some kind of stress (well, at least clearly to yours truly).

  8. Buck says:

    CW, the problem is our government CANNOT keep a secret. The real catch 22 is Congress can demand testimony. If the person refuses, he can be jailed. If the person complies, vital secrets end up in the NYT.
    Remember the Congressman in World War II who caused the death of hundreds of United States Navy Submariners?
    He publicly stated after his inquiries that the Japanese could not sink American submarines because they set their depth charges too shallow.
    And the Japs started setting them deeper.
    And Americans died.

  9. tannngl says:

    If Clapper was unable to answer that Q due to national security he could have asked for a private session with congress.

    The guy lied.

    He had also previously messed up on TV with something he said early in the prez’s first term. I think it was an answer to a question he did not know but should have.

    He is clearly incompetent and a bad liar. (I knew at the time he was lying-he was looking down and messing with his head when he answered, as I recall)