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Just keep in mind that the NSA routinely lies... even in direct testimony under oath to Congress. http://www.slate.com/articles/news_and_politics/war_stories/2

Just keep in mind that the NSA routinely lies... even in direct testimony under oath to Congress. http://www.slate.com/articles/news_and_politics/war_stories/2013/06/fire_dni_james_clapper_he_lied_to_congress_about_nsa_surveillance.html http://www.slate.com/articles/news_and_politics/war_stories/...

malloreon 13y ago
we need to begin putting government officials in prison for this.
- Cthulhu_ 13y ago
  Pretty sure the laws / etc in place right now make sure no individuals can be held responsible for that kinda thing; do (former) presidents get charged with mass murder for wars in Iraq / Afghanistan, for example? Government is different from common sense of law and right and wrong.
- baddox 13y ago
  Unfortunately that "we" is the government officials themselves.
  - res0nat0r 13y ago
    Clapper couldn't divulge the existence of a classified program in an open session hearing. If they really wanted answers vs. trying to grill the NSA in a public forum they could have asked the question in a closed session with only participants who've met the proper clearance level for said program disclosures. Unfortunately on HN anything NSA related is going to devolve into conspiracy theory groupthink these days vs. actual rational discussion that the NSA is not all knowing (unlike every other government agency which is apparently incompetent).
    - smokeyj 13y ago
      Only in your books would not accepting an official position qualify as groupthink. It's kind of hilarious. Oh, and Clapper lied because they made him, and thinking otherwise makes you a wacky conspiratard. Real mature.. Edit: Question for you - do you think there isn't a conspiracy here? Do you think the public has all the information about the legality of the executive branches activities? Because it sounds like Clapper was lying to cover his ass - but that's just conspiracy think.
    - dllthomas 13y ago
      The list of questions was pre-approved. When he made the decision to approve that question, he made the decision to perjure himself. Edited to add: Or at least, the decision to break the law. Which law may have been decided later.
      - csandreasen 13y ago
        There was nothing pre-approved about the question. Senator Wyden said he sent notice a day in advance that he would be asking the question. The ODNI General Counsel said that Clapper hadn't seen the question prior to the Senate hearing, and tried to correct it after the fact. [1] Keep in mind that this was a program that everyone on the intelligence committee had already been briefed on. You could make the argument that he misled the American public, but not Congress. Also note that since the intelligence committee knew about the program, any one of the members could have also issued a public statement clarifying the situation, but they didn't. People liked to harp on Clapper, but Wyden was the one who, instead of just telling his constituents himself (he wouldn't be subject to prosecution, but might have been kicked off the intelligence committee) or putting forth legislation restricting Section 215 collection, decided to put the DNI in the position of either violating the law by disclosing a classified program or telling the American public the "least untruthful" statement. [1] http://mobile.nytimes.com/2014/01/04/opinion/testimony-of-the-national-intelligence-director.html http://mobile.nytimes.com/2014/01/04/opinion/testimony-of-th...
        dllthomas 13y ago
        That's contrary to what I'd heard, but if it's in fact the case then that does change things a little. Note that there is again a flagrant lie in the GC's writing there - "Mr. Clapper [...] focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate." We know now that this is only close to true in any sense with the disingenuous and misleading definition of "collect" the NSA uses - which has no place in ordinary English and deserves no place in legal opinions. Of course, lying in a letter to the editor to the NY Times isn't a crime, but if the GC has no compunctions about wilfully misleading the reader I'm highly skeptical of their other claims. It's more than a little odd that he wouldn't have looked at the questions in advance - he knew this was a public forum, in which providing the most correct information while not leaking anything seems an important part of his job, and is likely to take some care and forethought. "Keep in mind that this was a program that everyone on the intelligence committee had already been briefed on. You could make the argument that he misled the American public, but not Congress." Most of Congress is not on either intelligence committee. Whether misleading them is correct is a deeper discussion, but if the answer is "no" then I think it's fair to say he mislead Congress as well as the American public. In any case, I agree that Wyden's approach here has been a little odd, though I at least appreciate the direction he's been pushing.
    - unclebucknasty 13y ago
      Clapper always had the option to decline answering a question. Choosing instead to lie means something.
      - userbinator 13y ago
        Interesting to note that in Asian languages there is actually a word for "neither yes nor no": http://en.wikipedia.org/wiki/Mu_(negative)#.22Unasking.22_the_question http://en.wikipedia.org/wiki/Mu_(negative)#.22Unasking.22_th...
      - res0nat0r 13y ago
        Declining is the same as acknowledging in this context, which he couldn't do.
    - nounaut 13y ago
      Either you're allowed to lie to congress when you're under oath or you're not. You can't have shades of grey or the law becomes utterly useless.
    - homulilly 13y ago
      The files Snowden leaked seem to imply that the NSA is both all knowing AND incompetent.
  - Dewie 13y ago
    Isn't separation of powers meant to prevent such things?
    - baddox 13y ago
      It's intended to, but it doesn't.
- patrickg_zill 13y ago
  I agree! I don't think anything will change until doing such crimes results in jail.
mpyne 13y ago
Either way Clapper would be breaking the law. In this case was placed between the choice of breaking his SF-182 NDA (which actually does have criminal implications... just ask Snowden) or lying to Congress in response to a question that the Congressman asking knew the answer to, but didn't want to take the risk of putting into the record himself. An interesting take on the matter is at http://joelbrenner.com/clapper-and-wyden-scenes-from-a-sandbagging/ http://joelbrenner.com/clapper-and-wyden-scenes-from-a-sandb...
- dllthomas 13y ago
  The questions were pre-approved. He could have objected to it beforehand, in private.
  - mpyne 13y ago
    That's immaterial though. The questioner knew the answer was classified, so it's not as if that was a surprise, because the questioner was a member of the Select Committee on Intelligence. In other words, he wasn't asking for his own edification, he was asking in order to force Clapper to either lie or break his oath by divulging the secret. Even saying "I can't answer that" would be an admission for the same exact reason hacktivists give a shit about warrant canaries. But whether Clapper objected or not, Sen. Feinstein apparently got an inkling the question would be asked, as she made clear at the start of the session that there would be a closed hearing immediately afterward for questions that couldn't be discussed in an open forum. And since Wyden and Udall both knew the actual answer, if they were so convinced the answer should be made public then either could have simply put it in the Senate record thanks to their Constitutional privilege and taken the risk that would come with that. Instead the risk was shifted entirely onto the public servant who didn't have Constitutional immunity from prosecution.
    - dllthomas 13y ago
      It's entirely material as to whether it was forced. Clapper knowingly permitted himself to be in a situation where his only options were to break one of two laws. He can't then use that as an excuse. He chose to break one of those laws when he chose (when reviewing the questions) that he was going to permit the question, and he's plainly guilty of breaking the law. "And since Wyden and Udall both knew the actual answer, if they were so convinced the answer should be made public then either could have simply put it in the Senate record thanks to their Constitutional privilege and taken the risk that would come with that." Agreed, and I would think more highly of them if they had. I'm not sure what the game was. That still does not change the fact that Clapper is guilty, though.

malloreon 13y ago

we need to begin putting government officials in prison for this.

Cthulhu_ 13y ago
Pretty sure the laws / etc in place right now make sure no individuals can be held responsible for that kinda thing; do (former) presidents get charged with mass murder for wars in Iraq / Afghanistan, for example? Government is different from common sense of law and right and wrong.
baddox 13y ago
Unfortunately that "we" is the government officials themselves.
- res0nat0r 13y ago
  Clapper couldn't divulge the existence of a classified program in an open session hearing. If they really wanted answers vs. trying to grill the NSA in a public forum they could have asked the question in a closed session with only participants who've met the proper clearance level for said program disclosures. Unfortunately on HN anything NSA related is going to devolve into conspiracy theory groupthink these days vs. actual rational discussion that the NSA is not all knowing (unlike every other government agency which is apparently incompetent).
  - smokeyj 13y ago
    Only in your books would not accepting an official position qualify as groupthink. It's kind of hilarious. Oh, and Clapper lied because they made him, and thinking otherwise makes you a wacky conspiratard. Real mature.. Edit: Question for you - do you think there isn't a conspiracy here? Do you think the public has all the information about the legality of the executive branches activities? Because it sounds like Clapper was lying to cover his ass - but that's just conspiracy think.
  - dllthomas 13y ago
    The list of questions was pre-approved. When he made the decision to approve that question, he made the decision to perjure himself. Edited to add: Or at least, the decision to break the law. Which law may have been decided later.
    - csandreasen 13y ago
      There was nothing pre-approved about the question. Senator Wyden said he sent notice a day in advance that he would be asking the question. The ODNI General Counsel said that Clapper hadn't seen the question prior to the Senate hearing, and tried to correct it after the fact. [1] Keep in mind that this was a program that everyone on the intelligence committee had already been briefed on. You could make the argument that he misled the American public, but not Congress. Also note that since the intelligence committee knew about the program, any one of the members could have also issued a public statement clarifying the situation, but they didn't. People liked to harp on Clapper, but Wyden was the one who, instead of just telling his constituents himself (he wouldn't be subject to prosecution, but might have been kicked off the intelligence committee) or putting forth legislation restricting Section 215 collection, decided to put the DNI in the position of either violating the law by disclosing a classified program or telling the American public the "least untruthful" statement. [1] http://mobile.nytimes.com/2014/01/04/opinion/testimony-of-the-national-intelligence-director.html http://mobile.nytimes.com/2014/01/04/opinion/testimony-of-th...
      - dllthomas 13y ago
        That's contrary to what I'd heard, but if it's in fact the case then that does change things a little. Note that there is again a flagrant lie in the GC's writing there - "Mr. Clapper [...] focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate." We know now that this is only close to true in any sense with the disingenuous and misleading definition of "collect" the NSA uses - which has no place in ordinary English and deserves no place in legal opinions. Of course, lying in a letter to the editor to the NY Times isn't a crime, but if the GC has no compunctions about wilfully misleading the reader I'm highly skeptical of their other claims. It's more than a little odd that he wouldn't have looked at the questions in advance - he knew this was a public forum, in which providing the most correct information while not leaking anything seems an important part of his job, and is likely to take some care and forethought. "Keep in mind that this was a program that everyone on the intelligence committee had already been briefed on. You could make the argument that he misled the American public, but not Congress." Most of Congress is not on either intelligence committee. Whether misleading them is correct is a deeper discussion, but if the answer is "no" then I think it's fair to say he mislead Congress as well as the American public. In any case, I agree that Wyden's approach here has been a little odd, though I at least appreciate the direction he's been pushing.
  - unclebucknasty 13y ago
    Clapper always had the option to decline answering a question. Choosing instead to lie means something.
    - userbinator 13y ago
      Interesting to note that in Asian languages there is actually a word for "neither yes nor no": http://en.wikipedia.org/wiki/Mu_(negative)#.22Unasking.22_the_question http://en.wikipedia.org/wiki/Mu_(negative)#.22Unasking.22_th...
    - res0nat0r 13y ago
      Declining is the same as acknowledging in this context, which he couldn't do.
  - nounaut 13y ago
    Either you're allowed to lie to congress when you're under oath or you're not. You can't have shades of grey or the law becomes utterly useless.
  - homulilly 13y ago
    The files Snowden leaked seem to imply that the NSA is both all knowing AND incompetent.
- Dewie 13y ago
  Isn't separation of powers meant to prevent such things?
  - baddox 13y ago
    It's intended to, but it doesn't.
patrickg_zill 13y ago
I agree! I don't think anything will change until doing such crimes results in jail.

mpyne 13y ago

Either way Clapper would be breaking the law. In this case was placed between the choice of breaking his SF-182 NDA (which actually does have criminal implications... just ask Snowden) or lying to Congress in response to a question that the Congressman asking knew the answer to, but didn't want to take the risk of putting into the record himself. An interesting take on the matter is at http://joelbrenner.com/clapper-and-wyden-scenes-from-a-sandbagging/ http://joelbrenner.com/clapper-and-wyden-scenes-from-a-sandb...

dllthomas 13y ago
The questions were pre-approved. He could have objected to it beforehand, in private.
- mpyne 13y ago
  That's immaterial though. The questioner knew the answer was classified, so it's not as if that was a surprise, because the questioner was a member of the Select Committee on Intelligence. In other words, he wasn't asking for his own edification, he was asking in order to force Clapper to either lie or break his oath by divulging the secret. Even saying "I can't answer that" would be an admission for the same exact reason hacktivists give a shit about warrant canaries. But whether Clapper objected or not, Sen. Feinstein apparently got an inkling the question would be asked, as she made clear at the start of the session that there would be a closed hearing immediately afterward for questions that couldn't be discussed in an open forum. And since Wyden and Udall both knew the actual answer, if they were so convinced the answer should be made public then either could have simply put it in the Senate record thanks to their Constitutional privilege and taken the risk that would come with that. Instead the risk was shifted entirely onto the public servant who didn't have Constitutional immunity from prosecution.
  - dllthomas 13y ago
    It's entirely material as to whether it was forced. Clapper knowingly permitted himself to be in a situation where his only options were to break one of two laws. He can't then use that as an excuse. He chose to break one of those laws when he chose (when reviewing the questions) that he was going to permit the question, and he's plainly guilty of breaking the law. "And since Wyden and Udall both knew the actual answer, if they were so convinced the answer should be made public then either could have simply put it in the Senate record thanks to their Constitutional privilege and taken the risk that would come with that." Agreed, and I would think more highly of them if they had. I'm not sure what the game was. That still does not change the fact that Clapper is guilty, though.