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January 21, 2014

Comments

"The NSA's job is to conduct signals intelligence, not to look for needles in a haystack."

1. If you would be so kind, who are you to say that the NSA's job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion? Do you have a reason besides restating the phrase "signals intelligence"? How does the NSA's mission violate the sacred category of "signals intelligence"?

2. "If they're approach to conducting signals intelligence is to look for electronic needles in electronic haystacks, they're likely going about it the wrong way."

I'm receptive to arguments that the NSA is going about looking for needles in haystacks badly, but you'll have to do better than "they probably are messing it up."

3. "I understand the desire to NEVER LET 9/11 HAPPEN AGAIN!!!11!!, but the intelligence failures leading up to 9/11 were not due to a lack of information."

Maybe the goal of the NSA programs are not simply to myopically prevent 9/11 from happening again, but to also prevent other harms of possibly greater magnitude that require greater vigilance.

4. "If you can't answer a question because it touches on classified information, a useful response is "I'm sorry but I can't answer that"."

"I'm sorry but I can't answer that" is not always a useful answer--sometimes it's the same as saying "yes" or "no."

"I'm sorry but I can't answer that" is not always a useful answer--sometimes it's the same as saying "yes" or "no."

I'm pretty sure that's what the issue was. Thanks, Julian.

"I'm sorry but I can't answer that" is not always a useful answer--sometimes it's the same as saying "yes" or "no."

This is a non-issue. Congress deals with classified testimony all the time. If the answer is classified, you explain that to committee staff and make sure that the question is asked in closed session. Since Clapper was given the questions in advance, he had ample opportunity to do that. But he chose not to. He chose to lie.

I'm not sure why agency heads who choose to lie to Congress should still have their job. "Don't lie to Congress" seems like job 1 when you're a high ranking government official. If you can't do that...what good are you?

Since Clapper was given the questions in advance, he had ample opportunity to do that. But he chose not to. He chose to lie.

No. The fact is that Wyden asked it anyway. He knew very well that the answer was classified, and he asked it anyway, knowing that. It's fine, Turbulence. Again, have his head. But that was not a straightforward hearing. Wyden, who knew everything about it, wanted to make it public. The way he wanted to do it was to compromise Clapper, rather than take a political hit himself. He won his little game.

If you would be so kind, who are you to say that the NSA's job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion?

A fair question.

Among the intelligence agencies, the NSA's job, specifically, is to conduct signals intelligence. That is what they do. It is their reason for existence.

The reason I push back on the "needle in a haystack" thing is because *all* intelligence gathering is difficult, *all* intelligence gathering involves discovering information that other people would prefer you not gather, *all* intelligence gathering involves distinguishing the meaningful and useful information from the non-useful noise in which it is embedded.

The reason I push back on the "needle in a haystack" thing in this context is that the NSA appears to be intent on constructing the *largest possible haystack that they can possibly assemble*. They are building a database of comms information that includes not only the communications of people who are relatively likely to be of interest, but also me, and you, and my cousin, and his neighbor, and the guy who owns the car wash down the street from me.

Everybody. Every phone call, every email, every facebook post, every tweet, every instagram selfie, every web browse, for every person in the US, for a period of five years, updated daily.

That's what they want to search through.

What they're hoping is that they will stumble across some as-of-yet-undiscovered associations between people of interest and other people of interest, or possibly between people of interest and people who we aren't interested in but should be.

In Leon's opinion, he makes the very simple but apt point that, assuming somebody calls 100 different numbers over five years, that the number of phone numbers in the set returned from one of the NSA's "three-hop" queries will be order-of-magnitude 1,000,000 numbers.

One million.

What do they do with one million freaking phone numbers? Check each one to see if they're significant?

Is the Domino's pizza call just a take-out order, or is the delivery guy a terrorist?

That question, times a million.

So, it strikes me that in deliberately increasing the amount of information that they are basing their search on to a truly extraordinary size, they are increasing the noise level of the information they are working with.

It seems stupid to me. I understand that the analytic tools are fabulous these days, but what they seem to be doing with their fabulous new hammer is giving it one million nails to hit.

There are folks on this board who actually have serious big data chops, so I'll leave it to them to weigh in further if they like. To me, it seems stupid.

"I'm sorry but I can't answer that" is not always a useful answer--sometimes it's the same as saying "yes" or "no."

The bog standard answer for intelligence functionaries to questions about classified programs is "I'm sorry, that's classified, I can't discuss it".

We hear that only about 500 times a year.

It is, in fact, a completely appropriate and useful answer. It's an accurate and truthful statement of the reality.

It was the answer Alexander gave to the same question.

And no, it doesn't automatically mean "yes, we're doing the horrible thing you think we are, but I can't say so". It means the topic is classified, and can't be discussed in an open meeting.

Why is it a "little game" if Wyden asks a question he already knows the answer to, but not a "little game" if Clapper lies rather than simply begs off?

thompson:
If you have case law or code that shows mens rea in a perjury case is not satisfied by a willful and knowing untruth under oath based on the condition that the "tribunal, officer, or person" knows its a lie, I'd love to see it.

...

Turb:
I don't know if Clapper committed perjury or not. But I do know that he has lied to Congress. And I know that Obama should have fired him immediately for doing so.

Actually, we can know with certainty whether Clapper committed perjury. He did not, as he was not placed under oath. The question at hand is if he is guilty of making a false statement to Congress. Which is also a fairly serious matter. But it's not perjury.

...

Having said that, I can't say I agree with sapient beyond that one point. I think the question was a legitimate one, especially if it was provided in advance so it could be eluded. Which it obviously wasn't. Clapper is a victim of his own actions as much as Wyden's.

sorry if this shows up twice...

"The NSA's job is to conduct signals intelligence, not to look for needles in a haystack."

1. If you would be so kind, who are you to say that the NSA's job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion? Do you have a reason besides restating the phrase "signals intelligence"? How does the NSA's mission violate the sacred category of "signals intelligence"?

2. "If they're approach to conducting signals intelligence is to look for electronic needles in electronic haystacks, they're likely going about it the wrong way."

I'm receptive to arguments that the NSA is going about looking for needles in haystacks badly, but you'll have to do better than "they probably are messing it up."

3. "I understand the desire to NEVER LET 9/11 HAPPEN AGAIN!!!11!!, but the intelligence failures leading up to 9/11 were not due to a lack of information."

Maybe the goal of the NSA programs are not simply to myopically prevent 9/11 from happening again, but to also prevent other harms of possibly greater magnitude that require greater vigilance.

4. "If you can't answer a question because it touches on classified information, a useful response is "I'm sorry but I can't answer that"."

"I'm sorry but I can't answer that" is not always a useful answer--sometimes it's the same as saying "yes" or "no."
Posted by: Julian | January 22, 2014 at 05:32 PM

If you would be so kind, who are you to say that the NSA's job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion?

A fair question.

Among the intelligence agencies, the NSA's job, specifically, is to conduct signals intelligence. That is what they do. It is their reason for existence.

The reason I push back on the "needle in a haystack" thing is because *all* intelligence gathering is difficult, *all* intelligence gathering involves discovering information that other people would prefer you not gather, *all* intelligence gathering involves distinguishing the meaningful and useful information from the non-useful noise in which it is embedded.

The reason I push back on the "needle in a haystack" thing in this context is that the NSA appears to be intent on constructing the *largest possible haystack that they can possibly assemble*. They are building a database of comms information that includes not only the communications of people who are relatively likely to be of interest, but also me, and you, and my cousin, and his neighbor, and the guy who owns the car wash down the street from me.

Everybody. Every phone call, every email, every facebook post, every tweet, every instagram selfie, every web browse, for every person in the US, for a period of five years, updated daily.

That's what they want to search through.

What they're hoping is that they will stumble across some as-of-yet-undiscovered associations between people of interest and other people of interest, or possibly between people of interest and people who we aren't interested in but should be.

In Leon's opinion, he makes the very simple but apt point that, assuming somebody calls 100 different numbers over five years, that the number of phone numbers in the set returned from one of the NSA's "three-hop" queries will be order-of-magnitude 1,000,000 numbers.

One million.

What do they do with one million freaking phone numbers? Check each one to see if they're significant?

Is the Domino's pizza call just a take-out order, or is the delivery guy a terrorist?

That question, times a million.

So, it strikes me that in deliberately increasing the amount of information that they are basing their search on to a truly extraordinary size, they are increasing the noise level of the information they are working with.

It seems stupid to me. I understand that the analytic tools are fabulous these days, but what they seem to be doing with their fabulous new hammer is giving it one million nails to hit.

There are folks on this board who actually have serious big data chops, so I'll leave it to them to weigh in further if they like. To me, it seems stupid.

"I'm sorry but I can't answer that" is not always a useful answer--sometimes it's the same as saying "yes" or "no."

The bog standard answer for intelligence functionaries to questions about classified programs is "I'm sorry, that's classified, I can't discuss it".

We hear that only about 500 times a year.

It is, in fact, a completely appropriate and useful answer. It's an accurate and truthful statement of the reality.

It was the answer Alexander gave to the same question.

And no, it doesn't automatically mean "yes, we're doing the horrible thing you think we are, but I can't say so". It means the topic is classified, and can't be discussed in an open meeting.

I tried to reply to Julian's 5:32 but I think my reply was too long.

So, briefly:

Among intelligence agencies, the NSA's specific task is to collect and analyze signals intelligence. That is why they exist.

The reason I push back on the "needle in a haystack" thing is twofold.

1. Intelligence gathering inherently involves trying to find useful, significant information in a big sea of noise. The NSA is not special in that regard, and deserves no special exemption from the restrictions that governs all intelligence gathering.

2. Going about finding needles by first building the biggest feasible haystack seems self-defeating. To me, anyway.

There are people on this board with serious big data chops, I will let them weigh in further if they wish.

Regarding Clapper, "I'm sorry, the topic is classified and I can't discuss it in an open meeting" is a completely useful and accurate answer. It's the answer Alexander gave to the same question. It's the bog standard answer that we hear 500 times a year in cases like this.

"No" when the actual answer is "yes" is not a good answer.

It's too bad for Clapper that wily Wyden tricked him into lying. What that tells me is that Wyden is better at his job than Clapper is.

Why is it a "little game" if Wyden asks a question he already knows the answer to, but not a "little game" if Clapper lies rather than simply begs off?

If you ask a question of a witness, knowing that they can't, ibecause of their own legal constraints, answer truthfully, isn't that a little game? Pretty sure that it's trying to force Clapper to do Wyden's dirty work for him. What is your take on Wyden's action?

Put it this way: If you ask a question to someone who you know could go to federal prison if he gives you a truthful answer, and you do so in public, isn't that a "little game"? Especially if you know the answer to it?

If you ask a question of a witness, knowing that they can't, ibecause of their own legal constraints, answer truthfully, isn't that a little game?

Clapper could easily have answered truthfully by saying "the topic is classified, can't discuss it here". It's what Alexander said to the *same question*, it's what folks from the intelligence communities say on a more or less daily basis.

My "take" on Wyden's action is that he wanted Clapper to make a statement about the program. I'm not a mind-reader so I don't know what his motivation was, nor do you.

Seriously, Clapper was asked to speak to Congress on a topic for which they are responsible to provide oversight, he was asked a simple and direct question, and he lied. He knew the question was on the agenda, he had time to consider what he would say. He didn't weasel around, he didn't obfuscate, he gave an answer 180 degrees away from the truth.

He is responsible for his reply, not Wyden.

If you ask a question to someone who you know could go to federal prison if he gives you a truthful answer, and you do so in public, isn't that a "little game"?

No, it is not a little game if the person testifying knows about the questions in advance and has the opportunity to request that their answer be made in private where there is zero legal risk to them and they choose not to do that. There was no risk to Clapper at all. Zero. None. Nada. Zilch.

If Clapper has asked committee staff to only ask that question in a closed session and Wyden blew him off, then you could argue that Wyden was playing games, but This. Did. Not. Happen.

Well, I respect you all, and your point of view. However, Wyden knew when he asked the question that Clapper could not give a truthful answer. He was asking Clapper to do the dirty work of disclosing classified information (or signalling to the public that there was something to hide). Whereas Wyden, himself, could have done so with the protection of Congressional immunity. You have your opinion. I have mine.

By the way, did I mention that we should hang Clapper?

NomVide:

"But it's not perjury"

Thanks, you are very correct on that count, and I was incorrect.

He was not under oath. But I think its still covered by lying to congress in USC18.

russell:

Do you have a link/know roughly when Alexander was asked?

I'd like to dig up the transcript, that's a really important fact.

Also, NomVide, I apologize, I apparently stopped reading your comment 1/2way through. So, again, you're right and my addendum about lying to congress was redundant and already covered by your comment.

But I think its still covered by lying to congress in USC18.

'lectric chair would be enough?

"However, Wyden knew when he asked the question that Clapper could not give a truthful answer."

You keep saying that, but it's simply not true. "That's not a question I can legally answer in open session." would be a truthful answer.

The simple fact is, he lied, and he didn't have to. Yes, it IS an outrage that he didn't lose his job.

The simple fact is, he lied, and he didn't have to. Yes, it IS an outrage that he didn't lose his job.


So torches, you freaking lazy people!

As Claire Wolfe said, "America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards."

More and more I think that period is drawing to a close. Neither party seems to have the will to even prolong it, let alone turn back the clock to the prior stage.

No sane person wants revolution, but we're being dragged into the position of having it be the only way out. And the NSA is doing its share of the dragging.

Brett, you're way more frightening to me than the NSA.

Have fun with that, Brett. I'm fighting for the Union.

Do you have a link/know roughly when Alexander was asked?

My comment upthread was not completely correct, the question asked of Alexander was about using cell phone intercepts to track the location of people, rather than capturing comms metadata.

See here.

The gist of the situation is the same.

By the way, Brett, since you're so into the "right to privacy," I guess you now support Roe v. Wade? Because surely if we have a right to privacy in our email, we also have a right in our organs. Or not?

Expectation of privacy, when software can allow random listening?

It's a brave new world out there. NSA? Google? Random person? Expectation of privacy? No, not really.

Thanks, russell. It's still a useful tidbit.

"'lectric chair would be enough?"

What would be enough would be prosecution under the appropriate statute with a fair trial. What any non-VIP who lied to congress could expect.

Equal justice under the law.

sapient:

I'm confused about your point at 8:09. Your link is about malware in the chrome browser.

Are you suggesting that because malware exists we have no expectation of electronic privacy?

That's like saying burglars exist, so we can't expect privacy in our own home.

I'm sure you had a different point, but it escaped me.

Make a citizen's arrest, friend.

As to your 8:24 pm comment, Thompson, don't be confused. We really don't have a pure expectation of privacy, do we? Holes in software can be exploited. What would the founders say about holes in software? What would they have said about thin walls? Can you channel the founders regarding thin walls?

Talk to me thompson about what the Founders thought about cubicles.

I'm not sure why it matters WTF Wyden was doing, little game, PR stunt, dare from his frat brothers, bumped his head on the way to the hearing, demonic possession, etc. Clapper lied, he should have resigned or been fired. That he didn't and wasn't speaks volumes.

Clapper lied, he should have resigned or been fired. That he didn't and wasn't speaks volumes.

That you aren't marching on Washington speaks volumes.

By the way, Ugh, did you pay your nanny tax? Did you obtain a federal job after smoking dope?

Speaks volumes.

Did you ever drive over 20 miles over the speed limit and you weren't charged with reckless driving?

Speaks volumes!

Let me ask you this, Turbulence, thompson, cleek, russell,

Why didn't Wyden come forth with information he knew, from classified briefings, when he was shielded by the Constituion?

Speaks volumes!

Why are you so focused on Wyden? Suppose some other senator who didn't know the answer to the question posed it to Clapper?

Why are you so focused on Wyden? Suppose some other senator who didn't know the answer to the question posed it to Clapper?

Because that wouldn't have been the real world. Suppose I were a butterfly.

In your opinion, would it have been okay for Clapper to answer as he did if Wyden's question was posed by a senator who did not know the answer?

For the record, and as I have stated (a couple of times), I think Clapper should have weaseled out of the question. So, again, if somebody (including Wyden) asked him about the program, he should have been prepared with weasel words.

My main problem is that Wyden had an agenda. He could have pursued it with courage. Instead, he used Clapper as a fall guy. Most people here (except Julian, from what I can ascertain), are fine with that. You seem to be, as well, Ugh. I'm not. I think that if Wyden had something to say, he should have (and could have, with impunity), said so. Instead, he chose to make a fool of Clapper (or, more accurately, use him as a fall guy).

You like that. I don't.

Speaking of things that may not be worthwhile, I cannot figure out what point y'all are making talking about Wyden and Clapper. Does this have anything to do with the question in my post, or are you just wrasslin'?

Thanks, Doc, for inspiring a vibrant conversation.

Honestly, regarding your post, I agree with (I think it was) Turbulence, who doesn't think any one of us, in particular, can do a cost/benefit analysis of any particular agency or branch of government, even the non-secret ones. The fact is, despite the fact that you are a brilliant scientist, and I am a brilliant polymath (haha), we don't have the particular knowledge about the vast array of things that each department of government does. I imagine that it's a big job even for the people who are supposed to do that work full-time (say, the people on the House Ways and Means Committee and their staff).

You'll recall the video clips of John McCain and others waxing on about the waste fraud and abuse inherent in various research programs that have funny names. Later we find out that those same programs were responsible for curing x number of cancers, etc.

i think the question is beyond the scope of our ordinary voter authority. But fine if anyone has put the time in to make an assessment on, say, the Air Force, or the Department of Homeland Security. Or maybe the Security and Exchange Commission.

Okay, thanks sapient. As I said, it doesn't much matter to me what Wyden was up to for purposes of assessing Clapper's conduct. He was on the record denying that the NSA was doing something it was, in fact, doing.

That's problematic for a number of reasons. To cite just one example, we have Judge Pauley in footnote 17 of his opinion citing the testimony of NSA Director Alexander to help show that the government is not doing anything nefarious with the data it collects (to loosely paraphrase). He could have just as easily cited Clapper's "clearly erroneous" (to use Clapper's words) testimony.

To be a bit more on topic, if my memory serves, the agencies did go ballistic when Plame was outed. You probably didn't notice, though, because the public face of them going ballistic was a small number of rather disgruntled off-the-record unsourced statements to reporters about widespread anger and shaken morale. We're talking about clandestine bureaucratic organizations you're not supposed to advertise you work for; did you really expect to see the rank-and-file taking to the streets or somesuch?

Dr Science, do you have any thoughts about the questions I raised here and here?

I'm sorry that our conversation here did not meet your expectations. To be honest, I didn't find your question to be super well thought out. I'd have been happy to discuss this with you, but you didn't seem interested in engaging with the commenters here who started asking questions or suggesting points about your post (just based on the observation that you didn't post comments of any length). I can't speak for anyone else, but for me at least the combination of not-super-well-developed-post plus no-engagement-from-author pretty clearly leads to conversation wandering to related topics that people are interested in discussing.

I don't know if that bothers you, but this seems like the second time in recent weeks where you've posted something, then not really engaged with the comments, then had conversation drift in a direction that you didn't care for, then expressed irritation that people weren't talking about precisely what you wanted them to. I might be totally wrong or misremembering, but that's my sense. Of course, you're totally welcome to express irritation that these anonymous people scattered over the internet to whom you pay nothing are not doing exactly what you want or saying the things you think they should say, but it seems...unlikely to improve matters.

"I imagine that it's a big job even for the people who are supposed to do that work full-time (say, the people on the House Ways and Means Committee and their staff).

You'll recall the video clips of John McCain and others waxing on about the waste fraud and abuse inherent in various research programs that have funny names. Later we find out that those same programs were responsible for curing x number of cancers, etc."

I see what your doing here, sapient, and I tend to agree with what I take to be your irony, but for clarification, I'd point out that "people doing that work full-time" and "John McCain and others waxing on" are mutually exclusive sets of people, with the first set virtually no longer existing and the second set having the goal of making all government action, except John McCain's rank incompetence at flying his misbegotten missions in 'Nam, the root of all evil, including curing cancer.

Brett speaks of government losing its credibility and what must be done, well, much effort has been put into convincing the American people that government has no credibility.

That said, I want the NSA sharply curtailed, but then my credit card was compromised by Target, so I want Target, the corporation, abolished too.

As in burned to the ground. The stores razed.

Happily, for some, that won't happen, Target having a rich coterie of p.r. and advertising money to throw around, while civil service job classifications like "Public Information Officer, to get the word out, my former line of work, more or less, having been abolished, by John McCain and others, a cast of thousands of filth.

DocSci:

"Does this have anything to do with the question in my post"

I think it does, although tangentially. One of the prime ways citizens such as yourself can evaluate program success is by the words of their leaders.

As Clapper lied, it becomes less reasonable to trust his assessments of program efficiency. In other words, it weakens faith in self-reporting of the agencies.

Note, that's not saying he always, or even frequently lies. It just weakens trust, requiring more verify.

Your left with other means of evaluating success. I linked to a post by Schneier earlier, which really was just links to two analyses on the very question you posed. I could summarizeh them I suppose, with "minimally effective". However, like most thorough analyses, they require detailed reading.

For convenience I've cut out the middle man and linked them directly.

New America Foundation: http://natsec.newamerica.net/nsa/analysis

and Just Security publishing for Hoover Institution:
http://justsecurity.org/wp-content/uploads/2014/01/Connecting-the-Dots.pdf

sapient:

"any one of us, in particular, can do a cost/benefit analysis of any particular agency or branch of government, even the non-secret ones."

I think these are examples of the analyses that voters can use to inform themselves. If they have questions and are so motivated, they can dig deeper, educate themselves, and form their own opinion.

Of course nobody can be an expert on everything. That's why we have scientists and journalists. And the scientists and journalists, if they do their job well, provide raw data or sources for their data so that their analyses can be verified by others.

Lack of expertise on everything by the entire population (a given) does not mean we are pretty much left with trusting government officials at their word.

Why didn't Wyden come forth with information he knew, from classified briefings, when he was shielded by the Constituion?

irrelevant. Clapper is the person who lied, in public, about the NSA. he could've said "no comment", "can't talk about there here", or any other deflection. but he didn't. he chose to lie. and then to lie about his lie. that's all Clapper.

your need to make this about Wyden is really kinda ... weird.

By the way, did I mention that we should hang Clapper?

Etc.

Argumentum ad misericordiam.

Quit being an apologist, sapient. Whether Clapper did wrong or not is the question (actually, it doesn't appear to be in question at all, but you seem to want it to be), and isn't in any way falsified by what sort of consequences are imposed on him.

As Julian pointed out, if a witness is going along testifying and answering questions, then is suddenly presented with a yes or no question that he has to deflect, a deflection creates an impression to people listening as to the answer. Clapper was bound to keep the program secret. If he took that responsibility seriously, he wouldn't want even to hint about its existence with a deflection.

As to perjury, you might want to read about the element of materiality. Since thompson wanted a citation, I'll refer him to the Justice Department's criminal resource manual.

"A false statement is material if it has 'a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.'"

In other words, if everyone on the deliberative body knew that Clapper would not be able to divulge the answer to the question, and they already knew the answer to the question, there was no material perjury since his answer was clearly not intended to influence the decision of the decision-making body, but merely to keep the secret.

I don't "need" to "make this about Wyden. " This clearly was about Wyden. Wyden wanted to get credit for making the secret program public without taking the political risk of doing so himself. It's as simple as that.

I don't "need" to "make this about Wyden.

Then you can stop anytime, now, can't you?

"Wyden wanted to get credit for making the secret program public without taking the political risk of doing so himself. "

I suspect if he'd done that you'd be going on about the wild irresponsibility of Wyden for doing this. Clapper could have evaded the question without lying. Wyden could have pointed to the evasion. That's my guess about Wyden's motives, if the object here is to investigate anyone who raises questions about the NSA.

In case you wondered what Clapper's other oath was (which I'm sure you didn't wonder, because you've already decided that Clapper is bad), it's something like this (which, you'll notice, includes "conduct, or by any other means":

"I do solemnly swear that I will never divulge, publish nor reveal either by word, conduct, or by any other means such classified information, intelligence or knowledge, except in the performance of my official duties and in accordance with the laws of the United States, unless specifically authorized in writing is each case by
a competent official of the United States Government."

At the very least, people could acknowledge that there was a dilemma here.

I can neither confirm nor deny the existence of a dilemma.

I suspect if he'd done that you'd be going on about the wild irresponsibility of Wyden for doing this.

Since he didn't have the political courage to do it, we'll never know what I would be going on about. What I do know is that Wyden didn't take a conflicting oath, and wouldn't have gone to jail for "divulging, publishing or revealing either by word, conduct or by any other means ..." Clapper was supposed to keep this stuff completely secret, not play games with it.

you've already decided that Clapper is bad

My natural reluctance to offer advice to lawyers on how to argue more effectively is taking a beating, here.

Slart, never change!

this is miles beyond silly at this point.

asking a question that you already know the answer to is completely normal, in fact recommended, procedure in any kind of adversarial proceeding. which is what this was.

ask any attorney.

asking a question that puts your interlocutor uncomfortably on the spot, likewise.

as to wyden's motive, maybe he just wanted to see if clapper was full of shit. if so, then asked and answered.

asking a question that you already know the answer to is completely normal, in fact recommended, procedure in any kind of adversarial proceeding. which is what this was.

It wasn't an adversarial proceeding. It was an information gathering proceeding. And Wyden not only knew the answer, but he knew that Clapper had taken an oath not to reveal (in any way, even by conduct) the answer. Wyden was in the wrong.

like i said, 'weird'.

"A false statement is material if it has 'a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.'"

It was an open hearing. Clapper wasn't lying to Congress, he was lying to you and me. In a democracy, the public are a decision making body, too.

That's cool, Brett! Democracy by TV!

And we should definitely valorize Wyden for trying to discredit Clapper. What a hero! Next week: show trials!

Was Clapper forced to lie?

I don't know what was in Clapper's mind, russell.

I know this: He was bound by oath not to disclose classified information, not only by what he said, not by his behavior, etc. Wyden knew that. Wyden knew about the program. Wyden asked him about it in an open session. That was a bullying tactic, not a good faith inquiry.

His lawyer says this. Maybe that's the truth.

If you think that personal gotcha games are an appropriate use of Congressional time, that's your right. Sometimes there's a reason to try to show that a witness is a lying SOB. In this case, the question was meant to force Clapper to compromise a secret, against his oath. If Wyden wanted to disclose the program, he should have just done so.

you don't have to know what was in his mind - i didn't ask anything about intent or state of mind.

my question is much simpler - was he forced to lie? i.e., did he have any options other than lying?

was there something else he could have said that would have (a) not required him to disclose classified information, and (b) been true?

His lawyer says this. Maybe that's the truth.

What his lawyer says is that he was caught off guard by the question, and mistakenly addressed the question of whether content (rather than metadata) was being collected on US persons.

That could be true. In which case, his response was not a lie, but an error.

And, he has subsequently corrected what he said, and apologized for the error. And, no action has been taken against him for his statements.

For the record, there is no lack of history of folks from the intelligence community either misrepresenting or simply lying to the public, or to the folks responsible for overseeing their activities. And no, I won't provide cites, because there isn't enough time in the day.

In that context, it is my opinion that it is completely appropriate for members of Congress to place, and keep, principals of the intelligence agencies on the hot seat.

So I have no problem with Wyden squeezing Clapper in an open hearing. It's unfortunate that Clapper gave an inaccurate answer, but that is frankly on him.

My opinion, you're entitled to your own.

In the words of Ron Burgundy, "Agree to disagree."

sapient:

Thanks for providing the link. I'd like to point to the very next line after your quote:

"The testimony need not have actually influenced, misled or impeded the proceeding. For example, potential interference with the grand jury's line of inquiry suffices to establish materiality..."

And while not 100% clear, it seems similar standards are held under USC18/1001.

I'm still left with a lie to congress that likely impeded Wyden's line of questioning and the hearing as a whole.

He could have easily deflected to a closed session without lying. And no, saying operational details are classified is not basically a "yes".

Perhaps it was an error because he was confused by the question. I find it unlikely, and also troubling that the DNI would be so easily confused.

This is problem, because it degrades trust in our leaders and our government.

But at some point, you disagree with that analysis. Fine. I'm not sure where or why, but that's where we'll have to leave it.

Also, Donald, thank you. I thought your comment @8:42 re: Wyden's motives was spot on. Although I can't speak for Sen. Wyden.

But it would be a good way to start a conversation about what the limits should be without revealing operational details.

Again relevant to the original post. The Privacy and Civil Liberties Oversight Board has issued a report.

http://www.mcclatchydc.com/2014/01/23/215466/privacy-advisory-board-repudiates.html#storylink=rss

The DNI lawyer really should have just let it rest. He's not making things any better.

I do solemnly swear that I will never divulge, publish nor reveal either by word, conduct, or by any other means such classified information, intelligence or knowledge, except in the performance of my official duties and in accordance with the laws of the United States, unless specifically authorized in writing is each case by a competent official of the United States Government.

I think there might be some room here for a positive defense give his duties as DNI, had he made a non-answer that could ambiguously imply that the question "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" had a classified answer. IANAL. But caught between two laws, he was arbitrarily choosing to clearly break one rather than ambiguously break another.

Also, if Wyden had reached the conclusion (as the Privacy and Civil Liberties Oversight Board did, per thompson's link above) that the NSA program was not legally sound, I'm curious why it would be incumbent upon him to suffer the consequences of making it public rather than pressuring the parties who he perceived to be breaking the law to bear the burden. It's only "cowardly" for him to do that if we assume he was acting out of self-interest and not a sense of working for the public good - something he could not continue to do after being crucified and removed from his committee - and if we refuse to consider the possibility that the NSA had (illicitly) classified an illegal program (which I think is a point worth considering; even if the sympathetic FICA court deemed it lawful based on open-court precedents, the legality could not be appealed or tested in open court due to its classified status - it's really hard to avoid reaching the conclusion that this amounted to secret law).

he was caught off guard by the question

How is that physically possible since Wyden's staff sent him the question the day before? I mean, is he so incredibly incompetent that he didn't bother prepare for testifying before Congress?

Clapper has a staff of deputies and assistants; how could he not know about the question when Wyden sent it to him in advance?

How is that physically possible since Wyden's staff sent him the question the day before?

Lawyer says he didn't read it.

a point worth considering; even if the sympathetic FICA court deemed it lawful based on open-court precedents, the legality could not be appealed or tested in open court due to its classified status

That is the point made in Leon's opinion. The government said he did not have jurisdiction to rule on whether it was legal or not, and he agreed.

it's really hard to avoid reaching the conclusion that this amounted to secret law

The law itself - section 215 of the USA Patriot Act - is not secret.

The findings of the FISC about whether a given program or investigation are legal is secret. And, apparently, cannot be reviewed once they have made a decision.

So, legal, but FUBAR.

Not only does secrecy enable corruption, it enables incompetence. What's the first thing you make secret? Your mistakes.

A quick note and apology, I dropped into superuser and found a passel of comments marked spam. A number of them were from Russell as the spam filter clearly caught his combative tone [/ironic], but they were far enough back that I just left them there. There was also a comment by a new commenter whose name I now forget. If you posted and didn't see your comment, don't despair!


Lawyer says he didn't read it.

heh.

So, let me get this straight. If we pass a law initiating a secret program, and the program is in fact a constitutional travesty, then we cannot ask about the program because it is lawfully secret?

Just trying to get my bearings.

IMO we should be discussing the questions raised in the post...political questions about the great National Security State we have erected and the ominous turn it appears to be taking.

It strikes me the discussion is lost in the weeds of a particularly controversial but minor exchange at a Congressional hearing.

The law itself - section 215 of the USA Patriot Act - is not secret.

The findings of the FISC about whether a given program or investigation are legal is secret. And, apparently, cannot be reviewed once they have made a decision.

Well yes. The authorizing law is not secret. But it includes gag orders and such so as to make it difficult to know that the law has been used against you (even before considering things like parallel construction) and restricts your available venues of legal recourse. The FISC case law regarding the legality of specific implementations is classified (and not subject to any review below the SC) so even if you do try to challenge a FISC-approved directive you don't have access to the prior decisions that will be considered in deciding your petition. It really is secret law. Yes, not all of it is secret, but enough of it is. It may be legal, but it's still secret law, and that's toxic to a healthy democracy.

johnw:

"What's the first thing you make secret? Your mistakes."

NomVide:

"but it's still secret law, and that's toxic to a healthy democracy."

Dead on, both of you.

bobbyp:

"IMO we should be discussing the questions raised in the post"

I've posted some links to analyses about legality and effectiveness.

I like to think that its all just so far beyond the pale that nobody has much to say about the implications. They are just bad, which isn't the most fascinating discussion.

Probably wishful thinking on my part :P

So how do I verify?

It seems to me that we have some limited means to verify, but no particular consequences flow from that.

So, there is judicial review in the form of the FISC, but they rarely deny requests for court orders, and the chief of the FISC has stated publicly that there's little they can do to ensure that the intelligence communities comply with the terms of the order. And FISC's oversight only reaches to the legality of the programs, not to their effectiveness.

There is potentially additional judicial review, if anyone with any standing manages to discover that they've been harmed in any way by the programs and brings suit. That review cannot address the legality of the programs, and absolutely has nothing to say about their usefulness or effectiveness.

There is executive oversight in the form of the Privacy and Civil Liberties Oversight Board, the majority of whom have found the metadata capture program to be illegal, constitutionally worrisome, and not all that useful. Their findings are not binding, and will likely be ignored.

There is Congressional oversight in the form of the intelligence committees. They rely primarily on briefings from the intelligence agencies themselves. They could, potentially, shut programs down by law or by defunding them. I can't think of a recent example of that happening.

The President is briefed on the programs, and could terminate them if he felt they were illegal or not useful. So far that hasn't happened.

There is information available to the public from non-classified sources, and from whistleblowers and other leaks. And that information is regularly analyzed in pieces like the ones thompson cited. Ultimately, the public could respond to that information by demanding that programs they find offensive be ended. Assuming that were to happen, which is frankly not in evidence, that might, or might not, have an effect.

So I would say we have been told we must trust, but there is no reliable way to verify, outside of a very limited and rareified circle of people. And there is even less means of ending or changing programs that might be found to be illegal or simply not wanted.

It seems to me that this particular program is not legal, because it doesn't meet the bar of the amended section 215 of USA Patriot. The information being collected is not, as it is required to be, directly relevant to any particular investigation.

The number of people on a planet of 6 or 7 billion who can actually do anything about that numbers in, I would guess, the low dozens. None of them appear to have any interest in changing a thing.

So I would say we have been told we must trust, but there is no reliable way to verify, outside of a very limited and rareified circle of people.

This is really not much different from the state of things under President Bush in that regard. Perhaps once Obama is out of office, sapient will be less enthusiastic in his support for the expanding status quo in the area of snooping private citizens.

This is really not much different from the state of things under President Bush in that regard.

The only really significant difference I can see is that we know more about the programs. And that is due almost entirely to the illegal disclosures made by Snowden & co.

we knew something about them under Bush, too.

here's a nice timeline:
https://www.eff.org/nsa-spying/timeline

Snowden provided more details and his personal escapades have given all of this a focus, but the bulk of this stuff was known. Bush spent a lot of energy defending this stuff, and was forced to change things due to the publicity.

remember the big NYT story where they revealed the NSA was forcing telcos to cooperate ? remember when Gonzalez made his hospital-bed-side visit to Ashcroft to get Ashcroft to authorize an extension NSA spying?

Perhaps once Obama is out of office, sapient will be less enthusiastic in his support for the expanding status quo in the area of snooping private citizens.

Perhaps. I don't deny that I trust how my preferred President handles many things over someone I don't support, given the huge amount of power that we, the people, hand to a President (whether or not he's got my metadata).

What bothers me hugely is this: I participate in the election of government, and believe in our system, as flawed as it is. The fact that many corporations have seemingly infinite access to information about people who, in some cases, have to deal with them, with few enforceable restraints, make it seem odd to me that people hyperventilate over the government collecting "outside the envelope" data that they've already given to the government.

Because, as we all know, corporations aren't ever corrupt, and their social conscience is well established! Their information is well-protected, and rarely hacked! They have no political agenda! And they're not capable of wrongdoing having grave social consequences, not having recently brought down the world economy, or anything, with their malfeasance! And everything they do is just as transparent as glass!

I'm concerned with safeguards and protections regarding the collection and use of private data by the government. But it bothers me hugely that our government might have less access to information than corporations take for granted. Our government's position vis a vis other governments, and paragovernmental organizations is also something to consider. Allowing the NSA to have 1950's style "signal intelligence" - I'm not sure what that means anymore.

The motivations of the "leakers" or "whistleblowers" are worth considering, not just the fact that there's a "conversation" going on (which has been the case since before I was a teenager - cleek is correct about the more recent "conversations"). Whose agenda is being served here? Is it really we, the people? I think it's the libertarian and corporate right wing.

... that they've already given to the government.

Typo: I meant, already given to a corporation.

But it bothers me hugely that our government might have less access to information than corporations take for granted.

Corporations can't f***k with me to the same degree and in the same ways that the government can. And it's actually not that uncommon for people, especially people whose point of view positions them as dissenters, to be f***ked with.

Corporations mostly just want to sell me something. It's pretty easy to just say no.

There are ways in which corporations can, in fact, screw with us using the information they hold. Mess with credit ratings, etc.

IMO that should be against the law, and it mostly is.

In the end, the fact that corporations have information about us also doesn't really make what the government does any better or worse. It's good or bad on its own merits.

I'd be delighted to have nice strong data privacy laws in this country, but that's sort of a separate issue for how government obtains and uses information about us.

remember when Gonzalez made his hospital-bed-side visit to Ashcroft to get Ashcroft to authorize an extension NSA spying?

lol. i'd almost forgotten about that one.

good times.

Corporations in the aggregate have lots of information, but a given corporation doesn't have access to all the information that all the other corporations have. The government can aggregate the information of many corporations.

And what russell said. Target isn't going to investigate me, throw me in jail or sic the IRS on me (and then throw me in jail).

"Because, as we all know, corporations aren't ever corrupt, and their social conscience is well established! Their information is well-protected, and rarely hacked!"

Nobody knows that. I'd venture to say many people knows the converse.

People can be concerned both about corruption in the government and in the private sector.

Indeed, it's the combination that's so toxic to democracy. Much of the government's argument stems from there not being a 4A consideration, because they aren't accessing *our* data. They are accessing Verizon's data. Or google's data. Or what have you.

Further, the government is distinct because it can collect and cross reference from multiple companies. My credit cards and my phone calls and my utility bills etc. To me, this heightens the need for oversight.

Finally, I can choose not to interact with a company if I don't like their privacy policy. It can be hard at times, but I have some choice in the matter.

I don't like that if I decide I can "trust" my ISP, it seems to automatically mean I trust the government. Because my web traffic is now a business record, and those are constitutionally unprotected (according to the government).

Finally:

"I don't deny that I trust how my preferred President handles many things over someone I don't support"

To me, this is dangerous, because power will shift and someone incompetent will eventually be elected (in my mind that's happened pretty consistently, YMMV).

Because, as we all know, corporations aren't ever corrupt, and their social conscience is well established! Their information is well-protected, and rarely hacked! They have no political agenda! And they're not capable of wrongdoing having grave social consequences, not having recently brought down the world economy, or anything, with their malfeasance! And everything they do is just as transparent as glass!

And this! I'm not sure what crowd you think you're talking to here, but I guess choirs don't mind hearing a little preaching now and then.

"The fact that many corporations have seemingly infinite access to information about people who, in some cases, have to deal with them, with few enforceable restraints, make it seem odd to me that people hyperventilate over the government collecting "outside the envelope" data that they've already given to the government"

I feel the same way about the hyperventilating our government officials and politicians engage in over Snowden, like the poor dears really care so much about the rule of law.

"Whose agenda is being served here? Is it really we, the people? I think it's the libertarian and corporate right wing"

Here's Glenn serving the interests of the corporate right wing back in 2010--

link

A quote from the article--

"But that’s the least of what makes McConnell such a perfect symbol for the legalized corruption that dominates Washington. Tellingly, his overarching project while at Booz Allen and in public office was exactly the same: the outsourcing of America’s intelligence and surveillance functions (including domestic surveillance) to private corporations, where those activities are even more shielded than normal from all accountability and oversight and where they generate massive profit at the public expense. Prior to becoming Bush’s DNI, McConnell, while at Booz Allen, was chairman of the Intelligence and National Security Alliance, the primary business association of NSA and CIA contractors devoted to expanding the privatization of government intelligence functions. "

Target isn't going to investigate me, throw me in jail or sic the IRS on me (and then throw me in jail).

Target might very well investigate me if I pose a risk to Target's profitability. Target may very well blackmail me if I run for office. Target can do a lot of things that we're supposedly worried about Government doing. And maybe Target can cause me to be put in jail if Target wants to work with a government, not necessarily the government of the United States.

I mean, we're all very creative with our paranoia about what government can do, IF government is abusing its power. I would suggest we think about what corporations are capable of doing.

And this! I'm not sure what crowd you think you're talking to here, but I guess choirs don't mind hearing a little preaching now and then.

Really? I don't hear much of an outcry. Why, because we (many of us) give that data to corporations freely. Unless we (oops, I mean, the Feds) interfere in some way, what are they doing with that data? What control do we as individuals have against corporations with all that data?

I can choose not to interact with a company if I don't like their privacy policy.

I'm glad that you "trust" their privacy policy, just because they're your "preferred" provider. I'm sure that when corporate abuse happens, the abusers are following their privacy policy to the letter. (And, by the way, I trust my President because he's my preferred President. At least I get to vote on that office.)

Much of the government's argument stems from there not being a 4A consideration, because they aren't accessing *our* data. They are accessing Verizon's data. Or google's data. Or what have you.

To be clear, the government's argument is that there isn't a 4A issue because the information they are collecting is information *about* the call, not the *content* of the call.

And, in fact, they are correct on that point.

The issue with the telephony metadata program is that the feds are *by law* (i.e., by a statute passed by Congress, rather than by Constitutional guarantee) not supposed to collect even the metadata on phone calls where both parties are in the US without a court order.

If either or both parties are outside the US, it's fair game. And the court order does not require reasonable doubt, the information just has to be relevant to an investigation.

The sticking point legally is whether the metadata they are collecting is actually relevant to a particular investigation.

Their argument apparently is that it is, because the method they are using to conduct the investigation requires a database of every phone call made by anyone in the US over the last five years.

The executive oversight board (and Leon, and others) finds that argument deficient, because it's more or less circular.

To me, it looks like the NSA wants it both ways here. They want the information because they assert that it's relevant and even essential to their investigations, but they tell us that we shouldn't worry about it because 99.99% of the information will never be seen by anyone, because it's not relevant to any investigation.

Long story short, there is good reason why we have laws limiting what information the government can have about us, and what use they can make of it. If we're going to ignore the law every time it presents any impediment, then there's no point in having the law.

Everybody obeys the laws when it's convenient to do so.

If the law is preventing them from doing something really essential, demonstrate that and change the law. If there's anyone in today's environment who is going to be able to fast-track changes to security law, it's the intelligence communities. All they need to do is find one freaking bloody shirt, and they'll win the day.

But while the law stands they need to observe it.

I would suggest we think about what corporations are capable of doing.

Fine with me. Let's get some bulletproof data privacy laws on the books. You can absolutely sign me up for that.

All of that has nothing whatsoever to do with how the government uses information it collects about us.

Nice misdirection, though.

Donald, Glenn's just engaging in the usual "both sides do it" charade. His point about outsourcing is a good one, but we can blame the Reagan revolution, and his hope for a libertarian paradise, for that poisonous mindset.

Basically, complex societies have to function with the help of large organizations. I pick government as the organization over which, if we're vigilant, we can have more control. Glenn (like thompson) doesn't seem to like either. Well, the cave is too uncomfortable for me.

I mean, we're all very creative with our paranoia about what government can do, IF government is abusing its power. I would suggest we think about what corporations are capable of doing.

Your creativity with your paranoia about what Target can and might do to you is leaving everyone else's creatity in the dust. The "Look over here" argument is wearing thin.

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