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Posted by on Jul 5, 2013 in Featured, Government, Law | 6 comments

We can handle the truth

Adam Zyglis, The Buffalo News

Adam Zyglis, The Buffalo News

WASHINGTON — I don’t believe government officials when they say the National Security Agency’s surveillance programs do not invade our privacy. The record suggests that you shouldn’t believe them, either.

It pains me to sound like some Rand Paul acolyte. I promise I’m not wearing a tinfoil hat or scanning the leaden sky for black helicopters. I just wish our government would start treating us like adults — more important, like participants in a democracy — and stop lying. We can handle the truth.

The starkest lie came in March at a Senate intelligence committee hearing, when Sen. Ron Wyden, D-Ore., asked Director of National Intelligence James Clapper a simple question: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper replied, “No, sir.”

As we’ve learned from former NSA analyst Edward Snowden, Clapper’s answer was patently false. The agency collects metadata — essentially, a detailed log — of many and perhaps all of our domestic phone calls.

Lying to Congress is a serious offense; baseball legend Roger Clemens was tried — and acquitted — on criminal charges for allegedly lying about steroid use at a congressional hearing. The chance that Clapper will face similar peril, however, is approximately zero.

Following Snowden’s revelations, Clapper said that an honest answer to Wyden’s question would have required him to divulge highly classified secrets, so he gave the “least untruthful” answer he could come up with. Clapper apparently believes that “least” is a synonym for “most.”

In a recent letter to the intelligence committee, Clapper said he thought Wyden was asking about the content of domestic communications — which the NSA says it does not collect “wittingly,” for what that’s worth — rather than about the metadata. “Thus, my response was clearly erroneous,” Clapper wrote, “for which I apologize.”

He sounded like the cheating husband, caught in flagrante by his wife, who feigns surprise and says, “What mistress? Oh, you mean (BEG ITAL)that(END ITAL) mistress.”

Clapper’s defenders say Wyden unfairly asked a question that he knew the director could not answer. But Wyden says he sent the question to Clapper’s office a day in advance — and gave him the chance to amend his answer afterward.

Also untrue is President Obama’s assertion that the NSA surveillance programs are “transparent.” They are, in fact, completely opaque — or were, until Snowden started leaking the agency’s secrets.

By what authority does the government collect data on our private communications? We don’t know. More accurately, we’re not permitted to know.

Section 215 of the Patriot Act allows the FBI to seek warrants “requiring the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities.”

Seizing records that pertain to an investigation is not the same thing as compiling a comprehensive log of billions of domestic phone calls. How has the law been stretched — I mean, interpreted — to accommodate the NSA’s wish to compile a record of our contacts, associations and movements? The government refuses to tell us.

We know that permission for this surveillance was granted by one or more judges of the Federal Intelligence Surveillance Court. But the court’s proceedings and rulings are secret. We don’t know what argument the government made in seeking permission to conduct this kind of vacuum-cleaner surveillance. We don’t know what the court’s legal reasoning was in granting the authority. We don’t know whether the court considers other laws so elastic.

We do know that the court’s secret hearings are not adversarial, meaning that there is no push-back from advocates of civil liberties. And we know that since its inception the court has approved more than 30,000 government requests for surveillance warrants and refused only 11.

I accept that the administration officials, Justice Department lawyers, federal judges, FBI agents and NSA analysts involved in the phone call surveillance and other programs are acting in good faith. The same is true of members of the House and Senate intelligence committees, who are supposed to be providing oversight. But honorable intentions are not enough — especially when we know that much of what these honorable officials have told us is false.

The biggest lie of all? That the American people don’t even deserve to be told what their laws mean, much less how those laws are being used.

Eugene Robinson’s email address is [email protected] (c) 2013, Washington Post Writers Group

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  • slamfu

    Amen Mr. Robinson.

  • DaGoat

    Kudos to Robinson for putting principle over party and not taking the “my Obama right or wrong” approach.

  • dduck

    What party? Bush started it or was it Truman opening mail, or was it _____________?

  • The_Ohioan

    I would argue that much of what our honorable officials have told us is misleading rather than false, but that is a personal assessment. Misleading by ommisssion is still misleading and this is a subject Sen. Wyden, and others, have been pursuing for some time.

    We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden tells Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

    What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information

    Though, since congress folk cannot be prosecuted for anything they say on the floor of either chamber, it is curious that they feel constrained by “classified information” restrictions except when they wish to query an administration official. Sen. Wyden seems to find it acceptable, even appropriate to discuss classified information at that point, even though the official being questioned must decide between the penalty for perjury and the penalty for divulging classified information before giving his answer – in open session.

    No doubt the same firestorm would have happened if Mr. Clapper had replied that he would answer that question in secret session, but at least he wouldn’t face either perjury charges or charges of divulging confidential information.

    Whether what is classified should be decided by the executive, the judicial, or the legislative branch is now before us. Can we trust Sen. Wyden with deciding what should be classified? How about Rep. Bachmann? How much do we need to know and how much do we want to know and why? It’s a true conundrum.

  • sheknows

    Amen as well. Might I also add, … or how, when, and by whom those laws come into being.

    The question is can we trust anyone in our government to decide “classified”.?
    Pretty much anything involving public awareness regarding anything the government does is on a “need to know” basis.
    Many of us are perplexed by that, but there truly is nothing we can do. They make the rules and write laws which enforce them.

    The time when all of this will hit the fan is when it becomes obvious ( or leaked) that this information is being used for purposes OTHER than foreign/domestic terrorism. And it will, if it hasn’t already.
    Perhaps that is why they are so desperate to get Snowden…who knows.

  • Spot on, Mr. Robinson. Spot-friggin-on.

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