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.
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 LIGNET.com, Newsmax Media’s global intelligence and forecasting service.