"Respectfully, Jim." So ends a June 21 letter from James Clapper, Director of National Intelligence, to Senator Dianne Feinstein of California, explaining why on March 12 he told a Congressional committee that the NSA doesn't "collect any type of data at all on millions or hundreds of million of Americans." In his letter, Clapper offers his third version of an excuse: he misunderstood the question. Whichever five-year-old taught our government agencies how to be accountable for their behavior did a hell of a job.
Shortly after the Guardian reported on the existence of the government's collection of phone records and internet traffic through the National Security Agency, attention turned to Clapper's comments. After all, the exchange with Sen. Ron Wyden of Oregon (at right) was explicit. Clapper himself includes it in his letter. Here's the Washington Post's transcription.
Wyden: So what I wanted to see is if you could give me a yes or no answer to the question, 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: Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.
True. Except for the metadata (which one could argue is a "type of data") that the NSA collects on every phone customer (which may run into the hundreds of millions) in the United States (the residents of which might be referred to as "Americans").
Clapper's letter explains.
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.
This is actually not a terrible answer. There are two tools the NSA uses for its data collection: amendments to the Foreign Intelligence Surveillance Act (FISA) which allows the NSA to pull a broad swath of data on non-Americans, and the Patriot Act's Section 215 which allows it to pull those phone records. Clapper answered on the first, not the second.
The reason this was such a good answer may be that it was his third go. On June 9, Clapper told NBC News' Andrea Mitchell that his response was "the most truthful, or least untruthful, manner" he could answer. (That response has become somewhat famous.)
But that was only his first public excuse. As the Guardian reported yesterday, Clapper admitted in private to Wyden that his answer was wrong — at the time of the hearing. Wyden "had a staff member contact the Office of the Director of National Intelligence on a secure phone line soon after the March hearing to address the inaccurate statement regarding bulk collection on Americans," the paper reports. He didn't.
By now, then, having had a chance to workshop his response a few times, Clapper lands a winner. But it doesn't exactly make sense either. Right after the NBC News appearance, Wyden pointed out that he'd sent the question to Clapper in advance, making it somewhat hard to believe that Clapper subsequently misunderstood it. And, of course, the protections on Section 702 are loose enough that the NSA collects data on Americans through it anyway. Maybe not millions, though.
To his credit, shortly after the NSA revelations broke Clapper issued a public statement clarifying points about the NSA's data collection and partially declassifying details of the programs. Later the NSA posted a fact sheet on its website detailing how and when the agency used its authority under Section 702 to surveil Americans. Except that this explainer, too, was factually inaccurate as noted by (you guess it) Ron Wyden. The NSA has pulled it down.
The Director of National Intelligence and the NSA explicitly don't want to share details about the programs they use. Every admission has been grudging and each has been tempered with the threat that it weakens domestic security. We've asked in the past if we can ever know the full extent of the intelligence community's surveillance of the American public. If we have to rely on third-times-the-charm explanations of misinformation that occur only after false information is exposed, it seems likely that the answer to that question is "no." A hard, unqualified no.
Clapper concluded his letter by noting that he'd appeared before Congress for two decades. "But mistakes will happen, and when I make one, I correct it," he wrote, leaving off, "eventually, if needed." Respectfully, Jim.