Director of national intelligence apologizes to senators for lying about NSA spying
Published time: July 02, 2013 18:48
US director of national intelligence James Clapper has sent a letter to senators in which he apologizes for providing “erroneous” information on NSA data collection, but the director is still under scrutiny for his inconsistent statements.
In late June, Clapper wrote a letter to the Senate Intelligence Committee to correct his response to a question he was asked during a March 12 hearing. When asked by Sen. Ron Wyden (D-Ore.) whether the National Security Agency “collected data on millions of Americans,” Clapper lied to Congress and said the NSA does not do this.
“No, sir, not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly,” he said in March. But after NSA leaker Edward Snowden revealed the NSA’s controversial surveillance programs in June, Clapper told NBC News that he gave the “least untruthful answer possible” at the hearing, and said the question he was asked was unfair. He said it was akin to being asked “when he was going to stop beating his wife.”
But now the national intelligence director is telling another story. In a failed attempt to minimize criticism against him, Clapper sent a letter to the Senate Intelligence Committee on June 21, stating that his “response was clearly erroneous – for which I apologize.” He claims that he misunderstood the original question.
“I have thought long and hard to re-create what went through my mind at the time,” he says in the letter, parts of which were first published by the Washington Post.
But rather than calm the firestorm revolving around his lie to Congress, the apology has just added fuel to the fire. Clapper’s latest allegation that he misunderstood the question contradicts what he said earlier about deliberately trying to provide the “least untruthful” answer.
Sen. Wyden on Monday said that Clapper’s office privately admitted that his answer to the NSA question was wrong, but did not publicly correct himself until June 21, after Snowden had already leaked the information. Additionally, Wyden claims that Clapper was given the question a full day ahead of time, so that he would be able to prepare his answer.
“So that he would be prepared to answer, I sent the question to Director Clapper’s office a day in advance. After the hearing was over my staff and I gave his office a chance to amend his answer,” Wyden said in a statement published on his website, which indicates that Clapper could not possibly have been taken by surprise by the question.
Numerous lawmakers have criticized intelligence officials – including Clapper – for misleading them about NSA surveillance. A bipartisan group of 26 senators last week wrote to Clapper to complain that the Obama administration is relying on a “secret body of law” for its domestic surveillance programs.
“We are concerned that by depending on secret interpretations of the Patriot Act that differed from an intuitive reading of the statue, this program essentially relied for years on a secret body of law,” the lawmakers wrote. “This and misleading statements by intelligence officials have prevented our constituents from evaluating the decisions that their government was making, and will unfortunately undermine trust in government more broadly.”
The Duty of Lawyers
What happens when the rule of law increasingly bows to the whims and violations of unaccountable public officials?
In the United States, we are seeing the rule of law eroded by those at the top levels of our government. We are witnessing the dismantling of the guiding principles of justice and the rule of law. Our legal system has been gamed to preferentially serve the needs of the few rather than those of the many.
The rule of law should be a persistent guard against — rather than an instrument of — unfair advantage or injustice for those with power, money and influence.
Our elected officials have failed in their duty to uphold the rule of law. This malfeasance has led to secret law, secret courts, secret evidence, secret budgets and secret prisons under the guise of “national security.” There is surveillance of attorney-client communications, unauditable secret expenditures for foreign military exploits, dragnet snooping of electronic and telephone data and even redacted published judicial decisions.
Habeas corpus has been tarnished by the inhumane and unjust treatment of prisoners in Guantanamo Bay including many already cleared by the government but still jailed. Infinite detention has tarnished our legal system. Some dictocrats even argue that American citizens should be subjected to indefinite imprisonment.
Drone attacks in foreign nations are justified by secret legal memos. The president, without any Congressional authorization, can target any “suspected terrorist,” including American citizens.
Who has the power to stop this descent into a nation of reckless leadership and lawlessness?
The million lawyers of America do. Lawyers know how to apply law to power. They know how to use the courts and how to lobby. They can cut through the jungle of legalese. They know when the laws are being violated and the remedies for the victims. They know how to draft legislation. They have contacts and resources. It’s only a matter of more of them utilizing these powerful tools.
Rule according to law; rule under law; or rule according to a higher law.
The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.
Rule According to Law
The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power.
Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against Ex Post Facto Laws in the U.S. Constitution.
For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.
For example, the due process clause of the Fifth and Fourteenth Amendments requires that statutory provisions be sufficiently definite to prevent Arbitrary or discriminatory enforcement by a prosecutor. Government officials must not be given unfettered discretion to prosecute individuals for violating a law that is so vague or of such broad applicability that evenhanded administration is not possible. Thus, a Florida law that prohibited Vagrancy was held void for vagueness because it was so generally worded that it encouraged erratic prosecutions and made possible the punishment of normally innocuous behavior (Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 ).
Well-established and clearly defined laws allow individuals, businesses, and other entities to govern their behavior accordingly (United States v. E.C. Investments, Inc., 77 F. 3d 327 [9th Cir. 1996]). Before the government may impose civil or criminal liability, a law must be written with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden. When a court is asked to shut down a paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the government to demonstrate that the factory owner failed to operate the business in accordance with publicly known environmental standards.
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A crime that occurs when an individual willfully makes a false statement during a judicial proceeding, after he or she has taken an oath to speak the truth.
The common-law crime of perjury is now governed by both state and federal laws. In addition, the Model Penal Code, which has been adopted in some form by many states and promulgated by the Commission on Uniform State Laws, also sets forth the following basic elements for the crime of perjury: (1) a false statement is made under oath or equivalent affirmation during a judicial proceeding; (2) the statement must be material or relevant to the proceeding; and (3) the witness must have the Specific Intent to deceive.
The punishment for perjury in most states, and under federal law, is the imposition of a fine, imprisonment, or both. Federal law also imposes sentencing enhancements when the court determines that a defendant has falsely testified on her own behalf and is convicted. Under the Federal Sentencing Guidelines, the court is required to automatically increase the defendant’s sentence.
Two federal statutes govern the crime of perjury in federal proceedings. Title 18 U.S.C.A. § 1621 codifies the Common Law of perjury and consists of the elements listed above. In 1970, the scope of section 1621 was expanded by the enactment of 18 U.S.C.A. § 1623. Section 1623 changes the definition of intent from willfully offering false testimony to merely having knowledge that the testimony is false. In addition it adds to the definition of perjury to include the witness’s use of information, including any book, paper, document, record, recording, or other material she knows contains a false material declaration, and includes proceedings that are ancillary to any court, such as affidavits and depositions, and Grand Jury proceedings. Section 1623 also contains a retraction defense. If, during the proceeding in which the false statement was made, the person admits to the falsity of the statement before it is evident that the falsity has been or will be exposed, and as long as the falsity does not affect the proceeding substantially, prosecution will be barred under section 1623.
Commentators believe that the existence of these two federal statutes actually frustrates the goals of Congress to encourage truthful statements. The reasoning behind this concern is that when a retraction exists, prosecutors may charge a witness with perjury under section 1621 and when a retraction does not exist, the witness may be charged under section 1623.
Two variations of perjury are Subornation of Perjury and false swearing; in many states these two variations are separate offenses. Subornation of perjury is a crime in which the defendant does not actually testify falsely but instead induces, persuades, instigates, or in some way procures another witness to commit perjury. False swearing is a false statement made under oath but not made during an official proceeding. Some states have created a separate offense for false swearing, while others have enacted perjury statutes to include this type of false statement. These crimes also may be punished by the imposition of a fine, imprisonment, or both.
The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct. A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant. Whistleblowers may file complaints that they believe reasonably evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.
Whistleblower Protection Enhancement Act
The Whistleblower Protection Enhancement Act was introduced in 2009 by Senator Daniel Akaka (D-Hawaii) to amend federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law, except for an alleged violation that is a minor, inadvertent violation that occurs during the conscientious carrying out of official duties. Senator Akaka has introduced similar bills in the 107th, 108th, 109th, and 110th Congresses and every effort to pass the law has failed. Although a stronger version of the bill had been introduced and twice passed the House of Representatives (see H.R. 985 introduced in the 110th Congress and H.R. 1507 in the 111th Congress), the Senate repeatedly refused to adopt the stronger House version. During the 2008 presidential campaign, several candidates, including then-Senator Barack Obama, pledged to support the stronger House version of the bill (H.R. 985) if elected president.
In July 2009, Senator Akaka proposed a controversial amendment to S. 372 that further weakened the bill and contained several provisions that were insisted upon by the powerful federal agency managers lobby and the Obama administration. Despite campaign promises to support the stronger House bill, after the election, President Obama disappointed many when his administration actively supported the weaker Senate bill and Obama administration officials helped craft some of the controversial provisions contained in the Senate mark-up version of the bill in 2009. The Senate sponsors of S. 372 delayed presenting the controversial bill for full Senate approval until the latter stage of the lame-duck session of the 111th Congress. The Senate version of the WPEA contained only modest reforms of whistleblower rights and actually contained a few provisions that would have made it more difficult for federal employees to bring whistleblower claims. The Senate bill differed substantially from the House version and the delay tactics by the Senate sponsors of S. 372 ensured that the House was given only a take-it-or-leave-it option to take up the weak Senate bill. When the House finally considered the weaker Senate bill on the last day of the 111th Congress, the bill’s sponsors needed a two-thirds vote to pass the bill on the House suspension calendar. Lacking the votes necessary to pass the weaker Senate bill, and to avoid objections raised by Republicans to the intelligence agency protections, the House sponsors of the Senate bill stripped out all protections for intelligence agency and FBI employees. The WPEA was killed in the Senate on December 22, 2010, when a senator placed an anonymous hold on the bill.
On the Media and the Government Accountability Project have organized a grassroots effort using the Internet to attempt to determine which senator placed the anonymous hold. As of March 14, 2011, only three senators had not denied placing the anonymous hold: Jon Kyl (R-AZ), Jeff Sessions (R-AL), and Jim Risch (R-ID).
The bill was reintroduced in the Senate with the protections for intelligence agency and FBI employees intact on April 6, 2011.
National Whistleblowers Center issued a statement on Re-Introduction of Whistleblower Protection Act, expressing their concerns that the Senate’s new WPEA bill provides the Merit Systems Protection Board with sweeping new powers to dismiss whistleblower cases without a hearing and to act as gatekeeper for court access. 
Reference: Public Law 112-199: http://www.gpo.gov/fdsys/pkg/PLAW-112publ199/pdf/PLAW-112publ199.pdf
The Whistleblower Protection Enhancement Act of 2012 was signed into law in November 2012, and provides that the implementation and enforcement of nondisclosure agreements by the Department shall be consistent with the existing statutory framework for whistleblower protections, as set forth below.
The provisions of the Department’s nondisclosure policies, forms, and agreements are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling. See Executive Orders 12958 and 13526; Section 7211 of Title 5, United States code (governing disclosures to Congress); Section 1034 of Title 10, United States code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); Section 2302(b) (8) of Title 5, United States Code, as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that expose confidential Government agents), and the statutes which protect against disclosure that may compromise the national security, including Sections 641, 793, 794, 798, 952, and 1924 of Title 18, United State Code, and Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. Section 783(b)).