April 2, 2014–General James Clapper has had enough. He can’t take any more. The Director of National Intelligence, tired of being caught lying when confronted with questions from his congressional overseers, has finally contrived a solution: don’t answer. Then, months later, reply quietly in a letter and hope that no one pays attention.
So it is with the latest evidence of intrusions by the National Security Agency’s eavesdroppers. Predictably, it was a question from Oregon democrat Ron Wyden at a January 29, 2014 hearing of the Senate intelligence committee that brought on this maneuver. Asked if the NSA had, in fact, conducted warrantless searches of Americans’ phone calls, Director Clapper replied, “There are very complex legal issues here,” and then clammed up.
Two months later, with the public’s attention diverted to the crisis in the Crimea and the breakdown of Israeli-Palestinian talks, Clapper sent Senator Wyden a letter which affirmed the truth, albeit in spookspeak. His March 28 letter stated, “there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence . . . . As you know, when Congress reauthorized [the relevant section of the FISA Amendments Act], the proposal to restrict such queries was specifically raised and ultimately not adopted.”
General Clapper could not do other than affirm the truth behind Senator’s Wyden’s question. Documents revealed by Edward Snowden last summer already show this to be the case. The DNI himself, under orders from President Obama, divulged FISA Court rulings that further confirmed this. So did an August 2013 compliance assessment from the NSA and Justice Department which found instances of these intrusions. Where are the “complex legal issues” that prevented Clapper from answering the question at an open hearing? My guess is that they were reporters and cameras.
Let’s deconstruct the substantive defense in the director’s March 28 letter. General Clapper relies on three elements: that the phonecall contents were legally obtained, that the actions occurred under FISA court judgments ruling them consistent with the law and the Fourth Amendment, and that Congress had considered and rejected a change in the law underlying the eavesdropping while renewing it.
Phonecall contents were obtained legally only in the sense that some FISA document referred to the activity in some fashion. As we should know by now, the intent of the 1978 law was to ensure that all wiretaps were covered by specific court orders. That’s different from this eavesdropping. Clapper’s top lawyer Robert S. Litt told the Privacy and Civil Liberties Oversight Board on March 19 (reported here in “Spy Scandals Update,” March 20, 2014) that it would be an inconvenience for the FISA court to have to rule on every request for a wiretap. Litt actually implied there are a substantial number of these kinds of intrusions when he said the number was much greater than 288–the figure for queries against “metadata” found in blue ribbon panel reviews of the NSA traffic analysis intrusions. Interesting that.
Clapper’s second point is demonstrably false. There was no FISA court opinion which considered the application of the Fourth Amendment to this spying until very recently. When an August 2013 review found transgressions that opinion was not on the books. The validity of that opinion can still be disputed but the point is that it did not exist at the time of the violations. As for the argument that Congress rejected changing the law, the question there is whether the NSA and DNI were truthful at the time in what they told the legislators about the real threat, their alternative means, and the bottom line requirements. Judging from the intelligence community’s track record, the likelihood they were honest with Congress is very low.
These are exceedingly thin reeds. Thus are Family Jewels shielded, by desperate defenses. As Senators Ron Wyden and Mark Udall put it in a joint press release yesterday, “This . . . poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure an authorization before monitoring his or her communications. This fact should be beyond dispute.” General Clapper’s credibility as a spokesman for U.S. intelligence remains near zero. He should go. President Obama needs to make that part of his NSA reforms.