FROM THE NEW YORKER
AUGUST 13, 2013
OBAMA’S CLAPPER MISTAKE
Does President Obama understand why what people have learned, thanks to Edward Snowden, about the National Security Agency makes them angry? Maybe not. In a press conference on Friday, Obama said that his Administration would be “forming a high-level group of outside experts to review our entire intelligence and communications technologies …. So I am tasking this independent group to step back and review our capabilities—particularly our surveillance technologies.” One of the tasks of this “outside… independent group” would be to figure out “how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used.”
Is lying to Congress and the public about surveillance programs considered an abuse? On Monday, the White House released a memorandum instructing James Clapper, the Director of National Intelligence whose false testimony in a Senate hearing about the programs was exposed by Snowden’s documents, “to establish” that very review group:
Within 60 days of its establishment, the Review Group will brief their interim findings to me through the Director of National Intelligence (DNI), and the Review Group will provide a final report and recommendations to me through the DNI no later than December 15, 2013.
The choice of Clapper came in for some instant mockery. The White House, as has been the case throughout the N.S.A. story, said that the problem was that people had misunderstood. Caitlin Hayden, a National Security Council spokeswoman, said in an e-mail that “the panel members are being selected by the White House, in consultation with the Intelligence Community,” not by Clapper alone, and that he wouldn’t be “directing” them or determining their conclusions. But, administratively, they needed a home, “and the D.N.I.’s office is the right place to provide that,” what with the need for security clearances and all. Bureaucratic tidiness is not what’s called for at the moment, though, especially at the expense of independence, given the depth of people’s doubts about the surveillance programs, and it is not what the President appeared to promise. Obama’s directives for the group don’t match the moment, either:
The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.
It’s striking that security and foreign-policy interests are weighed against “policy considerations.” What about legal or constitutional (or ethical) considerations? “Our need to maintain the public trust,” framed as a policy matter, is just about political approval—it is different than the obligation to keep faith with the public, or to recognize the public’s rights. That may be why it is coupled with the “risk of unauthorized disclosure”—which makes the memorandum sound like the mandate for a leak investigation. It’s a funny thing to put in the part of the equation where the variable is usually civil liberties. Here, that is replaced by the need to keep people quiet or complacent.
And how does Obama think that giving Clapper a prominent role—he may not be writing the report, but it will come from him to the President—will do even that? Snowden embarrassed him, and everyone knows it. Clapper has now offered several dubious explanations for why he answered “No, sir” when Senator Ron Wyden asked, “Does the N.S.A. collect any type of data at all on millions or hundreds of millions of Americans?” Hesaid that his “not wittingly” qualification covered it, as if, as in the case of Verizon’s phone records, the agency had gone to the FISA court for an order in some sort of trance; that “collect” was a really hard word to define; that he was thinking of the wrong secret program; that it was the “least untruthful” thing he could come up with. And anyway, he told Andrea Mitchell, it was sort of Wyden’s fault: the Senator was being “too cute by half” and had asked a “ ‘when are you going to start—stop beating your wife?’ kind of question.” (Will the Review Group be steered away from cuteness?)
Even if Obama thinks that all this makes total sense, and Clapper would be nothing but helpful to the review group, he is misreading the mood. Or he has failed to watch the “Daily Show” while Jon Stewart’s been away. As John Oliver put it, “No spy should have that big a tell”:
Perhaps it is hard to find someone with the stature to be the face of a review like this. But it can’t be that hard. (What about a retired Supreme Court Justice, like John Paul Stevens or Sandra Day O’Connor?)
The Clapper story isn’t just about credibility; it’s also about the facile idea that Snowden could have accomplished as much or more if he had just politely mentioned all this to one of his bosses or to a friendly person in Congress. Wyden knew more than he could say, and his questions only led to public misapprehensions.
Peter Maass has an excellent piece in the Times Magazine on where Snowden went with his documents and how he proceeded once he had them. In particular, Maass directs much of the credit to Laura Poitras, a documentary filmmaker. “I keep calling her the Keyser Soze of the story, because she’s at once completely invisible and yet ubiquitous,” Glenn Greenwald, her colleague, tells Maass. Even if there were no Snowden, the story would be worth reading for the account of what Poitras has gone through in recent years trying to travel in and out of the country, finding herself pulled out of airport lines, her name on mysterious lists. Will any names mentioned for the Review Group be checked against lists like that? Will Clapper, before he sets up their desks, have someone take a glance at who potential members have been calling or e-mailing, and what they might have said?
Above: James Clapper arrives on Capitol Hill, on April 18th, to testify before the Senate Armed Services Committee hearing on the current and future threats to national security. Photograph by J. Scott Applewhite/AP.
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