On Thursday, seven members of Congress wrote a scathing letter to the Attorney General requesting a criminal investigation into potential perjury by the Director of National Intelligence, James Clapper. The letter — signed by Republican representatives Reps. Darrell Issa (CA), James Sensenbrenner (WI), Trent Franks (AZ), Blake Farenthold (TX), Trey Gowdy (SC), Raúl Labrador (ID) and Ted Poe (TX) — reads in part:
One of the hallmarks of American democracy is that no one is above the law…. Director Clapper…was asked a question and he was obligated to answer truthfully. He could have declined to answer. He could have offered to answer in a classified setting. He could have corrected himself immediately following the hearing. He did none of those things despite advance warning that the question was coming…. Director Clapper’s willful lie under oath fuels the unhealthy cynicism and distrust that citizens feel towards their government and undermines Congress’s ability to perform its Constitutional function.
Earlier this year, in March, Clapper testified before the Senate Select Committee on Intelligence about domestic data collection conducted by the NSA. Senator Ron Wyden (D-OR) posed a tough question, asking whether “the NSA collected any type of data at all on millions or hundreds of millions of Americans.” Clapper responded “No, sir,” but revelations from whistleblower Edward Snowden revealed Clapper’s denial as a lie, for which he later apologized in writing. If anything, Wyden’s question was an understatement; in fact, the NSA collects telephony metadata for every call placed within the US. Clapper has responded inconsistently to accusations that he lied to Congress under oath, stating alternately that he answered in “the least untruthful manner possible,” that he misunderstood the question, and finally that he just “didn’t think” of the specific section of the Patriot Act that the NSA claims authorizes bulk data collection. To some lawmakers in Washington, however, “Oops” is not good enough. BORDC has consistently championed Clapper’s prosecution. The day before the seven House Republicans wrote to the Attorney General, BORDC published a letter to the president from a group of retired intelligence professionals (including BORDC advisory board members Thomas Drake, Coleen Rowley and Daniel Ellsberg) in which they explain that:
[N]o intelligence director should be able to deceive Congress and suffer no consequences. No democracy that condones such deceit at the hands of powerful, secretive intelligence directors can long endure.
James Clapper, the Director of National Intelligence has not been truthful with the American people. His public statements have been directly contradicted by established facts. His lack of truthfulness before Congress is part of an overarching pattern of deception by federal agencies regarding the scope domestic surveillance authorized through the PATRIOT Act.
Other organizations have also called for Clapper’s prosecution. Citizens for Responsibility and Ethics in Washington wrote a detailed letter to the Attorney General in July, arguing that Clapper’s June 2013 letter admitting that his March 2013 testimony was “clearly erroneous”:
appears to be nothing more than an after-the-fact rationalization designed to protect Director Clapper from criminal liability. His claim of confusion is seriously undermined by several facts…. [G]iven the large numbers of people within NSA and other agencies with knowledge of the PRISM program, Director Clapper’s false testimony may have been part of a conspiracy to make false statements, thereby obstructing a congressional inquiry…. The marked contrast between the Department of Justice’s aggressive…prosecution of leaks, real and imagined, and its decided lack of interest in high-level official deliberately lying to Congress suggests that…our government…is willing to sacrifice the democratic principles on which our country was founded….
Moving forward with a prosecution will not be easy. Democrats in Congress must work to set aside partisan differences that may otherwise sap the political will to prosecute. Even with the backing of both parties, the statutes criminalizing lying to Congress are especially difficult to act on. Justia explains that:
There are three principal criminal statutes that address false statements to Congress: (a) the general perjury statute (18 USC 1621); (b) the general obstruction of justice statute (18 USC 1505); and (c) the general false statements statute (18 USC 1001)… … It is unusual for a witness to confess to lying to Congress, as Clapper has publicly done. And such an admission certainly reduces the burden on any prosecutor to prove falsity and state of mind. Remarkably, it appears that Clapper has confessed to violating all three of the above statutes. Yet it is very unlikely Clapper will be prosecuted, because that is not how Washington works today.
Accountability for serial executive deception can happen only if concerned Americans force our institutions to take action. Democrats and Republicans alike must hear an earful on this issue from the everyday people who live on the business end of NSA spying.