The NSA has lied to the Congress, the courts, and perhaps even to the president himself, but no one seems to care.
The Director of National Intelligence James R Clapper admitted he lied to Congress about the NSA metadata collection program. He said the NSA had no such program – and then added that that was the least “untruthful” remark he could make.
General Keith Alexander, director of the National Security Agency, lied in 2012 that the NSA does not hold data on US citizens, and repeated similar misstatements, under oath, to Congress about the program:
We’re not authorized to do it [data collection on US citizens], nor do we do it.
NSA lawyers lied to secret Fisa court Judges John D Bates and Reggie B Walton. In recently released opinions, Bates said he had been lied to on three separate occasions and Walton said he had been lied to several times also.
But Clapper and Alexander have not been held in contempt of Congress. Nor have the Justice Department attorneys, who lied to Judges Walton and Bates, been disciplined. Part of the answer as to why this is so came out last week.
The Justice Department told USA Today that it had no intention of investigating the attorneys who lied to those judges. In the ordinary course, the Justice Department’s office of professional responsibility investigates the behavior of lawyers who have been subject to accusations such as those made by Judges Bates and Walton.
That office, for example, investigated opinions given by the Office of Legal Council that torture was legal. But in the case of NSA lies, the Justice Department doesn’t seem to care.
The big fish, of course, are Alexander and Clapper. Congress usually comes down hard on those it suspects of lying to it. In this case, Generals Clapper and Alexander were not merely suspected of lying: Clapper admitted he lied to Congress and Alexander effectively said the same thing. Yet, nothing has happened. There should be accountability for their behavior.
In an address to the nation on 9 August 2013, President Barack Obama said he had five reforms in mind with respect to dealing with the NSA “problem”: he would provide that the Fisa court have adversarial representation (sorely needed); the NSA would expose to the public what it was doing on its website (laughable); the NSA hire a civil rights advocate (inconsequential); and Congress should amend section 215 of the Patriot Act (good idea); and lastly, he would appoint experts to examine NSA practices.
The latter idea on its face would seem to be a reasonable one. In practice, though, it does not seem to be going anywhere thus far. The group of experts consist of former OMB Director Peter Swire, former Deputy CIA Director Richard Morell, counter-terrorism expert Richard Clark, and two some-time University of Chicago law professors, Cass Sunstein and Geoffrey Stone.
The committee does not have a promising name: the review group on intelligence and communications technology. It’s not communications technology that needs to be reviewed, but the culture of lying at the NSA. This needs to be changed without delay. Perhaps the only way to do this is to fire Alexander (and Clapper, too) and start all over again.
The committee has been criticized as being too pro-national security and too pro-Obama. The criticism may be justified. Sunstein and Stone, as distinguished as they may be, taught with Obama at the University of Chicago law school; and Clark and Morell have pro-national security credentials.
The committee has had one reported meeting. It dealt with complaints from internet companies, technical in nature, which covered their relationship with the NSA. Other meetings, if any, have not been reported.
As noted, the real issue before the committee is the deceptions of the NSA. We expect the NSA to have a culture that lies to and deceives the enemy. But the American public is not the enemy.
The NSA’s culture of lying to the public and its courts is not a new phenomenon. This has been a part of an ingrained culture that goes back for years. For example, in the Pentagon Papers case in 1971, the NSA was doing the same thing. As secret records in the case show, the NSA made an entirely bogus claim that publication of the papers would disclose the secret that the US had broken the North Vietnamese communications code.
It was proven to the lower courts that this “secret” had already been published in the Congressional Record; it was not a secret at all. Nonetheless, the NSA persuaded Erwin Griswold, the former dean of Harvard law school, the then solicitor general of the United States, to knowingly lie to the United States supreme court that it was still a secret. The court ignored this false assertion and permitted the information to be published anyway.
It is too late now to attack the NSA for destroying the reputation of the dean of one of the great law schools in this country. It is not too late, however, to force the NSA to change its culture.
Obviously, if this culture seeps into popular culture, lies and deceits will be easily tolerated – and we will all be the worse for it. President Obama should focus on this issue before it is too late. But it is not at all clear that he cares about it any more than Congress or the Justice Department do.