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Clapper was also in the unfortunate position of being legally required to lie: Refusing the respond, or deferring his response to a closed session, would have b

by er35826 13y ago

Clapper was also in the unfortunate position of being legally required to lie: Refusing the respond, or deferring his response to a closed session, would have been evidence enough that such a program existed. Anything other than a simple, direct denial would have been 'leaking' information about the possibility of such a program existing, which is expressly against the law as well.

sbt 13y ago
Ok, but then my follow up question would be: why put him in front of congress to testify in the first place? Did congress not understand that he was legally required to lie to them?
- freerobby 13y ago
  He wasn't legally required to lie to them.
- dragonwriter 13y ago
  > Ok, but then my follow up question would be: why put him in front of congress to testify in the first place? Did congress not understand that he was legally required to lie to them? I think Congress would think that he is legally required to answer them truthfully, not to lie, and would be appalled at the suggestion that anyone could be legally required to testify falsely to them.
freerobby 13y ago
Source please? I've never seen a legal opinion that declining to answer something constitutes a "leak." Ron Wyden also gave him multiple outs and heads ups before his testimony if he wanted to get out of it.
Zigurd 13y ago
"I cannot confirm or deny" has served well enough in thousands of other cases. "Least untruthful" is a standard we should not allow to be established.
MichaelSalib 13y ago
Is this true? I thought Clapper knew about the questions in advance, which means he could have easily asked committee staff to only ask those questions in closed session. Congress is usually very deferential about those sorts of issues.
trunnell 13y ago
Hmm, I think that confuses the point. The NSA programs are either constitutional or not. Wyden was essentially asking, Is this program constitutional? Does it collect data on US persons without a warrant? Clapper swore an oath to the Constitution, so he should always be able to answer that question truthfully. "Yes, this program is constitutional. No, it doesn't collect data on US persons." The fact that he couldn't say that is the issue. Secrecy is not some magic sauce that makes a program constitutional. Secrecy doesn't free a program from legal scrutiny.
- dragonwriter 13y ago
  > The NSA programs are either constitutional or not. The idea that constitutionality, or any other question of legal interpretation, is a matter of objective fact which has a clear, crisp, true or false answer is, while a comforting illusion, not at all even remotely true.
  - blueprint 13y ago
    Whether or not warrants were obtained for their activities, is, however, an objectively verifiable boolean fact.
    - mpyne 13y ago
      Sure, but that doesn't help you either, as there are many other precedents besides NSA programs for situations where the government can compel a search without a warrant. This is permitted by that pesky little word "unreasonable" in the Fourth Amendment.
- mpyne 13y ago
  As dragonwriter points out, simply "collecting data" is not necessarily unconstitutional, so your two equivalent questions are not congruent.
  - trunnell 13y ago
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -Fourth Amendment, US Constitution It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment. Attempts to justify it that we've heard about so far, like the assertion that it's not a seizure until the data is "looked at" is clearly a post-hoc rationalization which, put nicely, strains credibility.
john_b 13y ago
He put himself in this position, likely with the intent to lie. Both intelligence committees submit questions to intelligence agencies in advance, who can then comment on these questions and make requests for change (such as moving some to the closed session). This is done in private, so moving a question to the closed session does not reveal any information to the public. Even if for some reason this question blindsided him, he could have refused to confirm or deny it in an open session, as others have pointed out. But he wanted to put the PR fires out, and telling Congress and the public that they didn't collect bulk metadata indiscriminately served that end at the time, but later came back to bite him (and hopefully cost him his job, if not more).
perlgeek 13y ago
If there really is anything that requires somebody to lie to the highest institution that is democratically legitimated, there's something wrong with that democracy.
deleted 13y ago
[deleted]

by er35826 13y ago

sbt 13y ago

Ok, but then my follow up question would be: why put him in front of congress to testify in the first place? Did congress not understand that he was legally required to lie to them?

freerobby 13y ago
He wasn't legally required to lie to them.
dragonwriter 13y ago
> Ok, but then my follow up question would be: why put him in front of congress to testify in the first place? Did congress not understand that he was legally required to lie to them? I think Congress would think that he is legally required to answer them truthfully, not to lie, and would be appalled at the suggestion that anyone could be legally required to testify falsely to them.

freerobby 13y ago

Source please? I've never seen a legal opinion that declining to answer something constitutes a "leak." Ron Wyden also gave him multiple outs and heads ups before his testimony if he wanted to get out of it.

Zigurd 13y ago

"I cannot confirm or deny" has served well enough in thousands of other cases. "Least untruthful" is a standard we should not allow to be established.

MichaelSalib 13y ago

Is this true? I thought Clapper knew about the questions in advance, which means he could have easily asked committee staff to only ask those questions in closed session. Congress is usually very deferential about those sorts of issues.

trunnell 13y ago

Hmm, I think that confuses the point. The NSA programs are either constitutional or not. Wyden was essentially asking, Is this program constitutional? Does it collect data on US persons without a warrant? Clapper swore an oath to the Constitution, so he should always be able to answer that question truthfully. "Yes, this program is constitutional. No, it doesn't collect data on US persons." The fact that he couldn't say that is the issue. Secrecy is not some magic sauce that makes a program constitutional. Secrecy doesn't free a program from legal scrutiny.

dragonwriter 13y ago
> The NSA programs are either constitutional or not. The idea that constitutionality, or any other question of legal interpretation, is a matter of objective fact which has a clear, crisp, true or false answer is, while a comforting illusion, not at all even remotely true.
- blueprint 13y ago
  Whether or not warrants were obtained for their activities, is, however, an objectively verifiable boolean fact.
  - mpyne 13y ago
    Sure, but that doesn't help you either, as there are many other precedents besides NSA programs for situations where the government can compel a search without a warrant. This is permitted by that pesky little word "unreasonable" in the Fourth Amendment.
mpyne 13y ago
As dragonwriter points out, simply "collecting data" is not necessarily unconstitutional, so your two equivalent questions are not congruent.
- trunnell 13y ago
  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -Fourth Amendment, US Constitution It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment. Attempts to justify it that we've heard about so far, like the assertion that it's not a seizure until the data is "looked at" is clearly a post-hoc rationalization which, put nicely, strains credibility.

john_b 13y ago

He put himself in this position, likely with the intent to lie. Both intelligence committees submit questions to intelligence agencies in advance, who can then comment on these questions and make requests for change (such as moving some to the closed session). This is done in private, so moving a question to the closed session does not reveal any information to the public. Even if for some reason this question blindsided him, he could have refused to confirm or deny it in an open session, as others have pointed out. But he wanted to put the PR fires out, and telling Congress and the public that they didn't collect bulk metadata indiscriminately served that end at the time, but later came back to bite him (and hopefully cost him his job, if not more).

perlgeek 13y ago

If there really is anything that requires somebody to lie to the highest institution that is democratically legitimated, there's something wrong with that democracy.

deleted 13y ago

[deleted]