Did James Clapper Lie to Congress?

In March, Director of National Intelligence James Clapper told a Senate Committee that the National Security Agency does not “collect any type of data” on Americans, at least “not wittingly.”  Recent leaks about NSA surveillance activity suggest this was not true.  Here is Clapper’s exchange with Senator Wyden from the March hearing:

Senator Wyden: “Last summer the NSA director was at a conference and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘… the story that we have millions or hundreds of millions of dossiers on people is completely false.’
“The reason I’m asking the question is, having served on the committee now for a dozen years, I don’t really know what a dossier is in this context. 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.”

In a recent interview with NBC News (via Yahoo News), Clapper defended his response:

I have great respect for Sen. Wyden. I thought, though in retrospect, I was asked [a] ‘When are you going to stop beating your wife’ kind of question, which is … not answerable necessarily by a simple yes or no,” Clapper said.

“So I responded in what I thought was the most truthful, or least untruthful, manner by saying ‘no,'” Clapper said, indicating that he did not consider it “collection” unless government officials actually reviewed the content of the communications. The NSA program, regarding phone records, scoops up “metadata”—phone numbers called, duration of calls, location and the like.

This is not much of an explanation. It’s hard to argue that the NSA has not been engaged in the “collection” of information. If members of Congress are looking for an Administration official who gave untruthful testimony, it sees to me Clapper is a better candidate than Eric Holder. There is an added wrinkle here, however, is that it is not clear to me whether Clapper could have given a direct (and truthful) answer in a public hearing, as such an answer would have required him to disclose the existence of a then-classified government program. Even a non-answer or evasion could have revealed the existence of operations the NSA was trying to keep secret. In such a situation I would think one response would be to correct the record with the committee after-the-fact. Yet according to Senator Wyden’s office, no such correction was forthcoming — even after the Senator’s office gave him an opportunity to amend his answer. Admittedly Clapper was in a difficult situation, but it’s nonetheless clear that he was not truthful to Congress.

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