I'd been back in DC for less than 14 hours before I found myself standing up in a Senate hearing chamber to ask Director of National Intelligence James Clapper a question that somehow never came up during his appearance before the Senate Armed Services Committee.
I asked a simple question of a public official in a public setting that no elected member of Congress has had the independence to ask: how can you lie to Congress and get away with it? It’s a disturbing sign of our draconian times that posing that question is an alleged crime while Clapper’s lies to Congress remain unpunished and tacitly rewarded. Welcome to America!
Two years ago, around this time of year, Clapper famously appeared before the Senate Select Committee on Intelligence (SSCI) and made a self-serving false statement under oath -- which one might describe as a criminal lie reflecting institutional corruption -- in response to a serious question from Senator Ron Wyden (D-OR) that eventually drove a global controversy after the Snowden revelations proved Clapper's statements to be (in his own subsequent words) "too cute by half."
Sen. Wyden's office asked Clapper (in writing in advance of the hearing) whether the NSA spied on millions of Americans. Clapper gave a convenient answer on camera, then Snowden proved it wrong. From the DNI's perspective, Clapper was bending the meaning of English to suggest that "collect" somehow means to "analyze," ignoring two centuries of constitutional history to the contrary to erect a system of mass surveillance of precisely the kind that our nation railed against during the Cold War.
Clapper eventually admitted his statement was less than entirely true, downplaying it as the "least untruthful" response he could offer given the legal constraints imposed by the presumptuous, bloated, and anti-democratic national security classification system and its incompatibility with public hearings.
But why should secrecy trump transparency in the first place?
The SSCI was founded in the wake of the 1970s Church committee investigation that unconvered wanton, rampant, and unchecked domestic intelligence abuses by the FBI and CIA -- including a preposterous plot to drive Dr. Martin Luther King, Jr. to an early death. It's the one part of the government that has an effective chance to check or balance the otherwise unaccountable secret actions of executive branch agencies. (For law geeks: Judicial doctrines like the state secrets doctrine, or restrictive standing on which SCOTUS relied to dismiss Clapper v. Amnesty Int'l, ensure that the courts will not get involved untill their independence is re-established.)
A SSCI that did its job would, in the face of proven lies by the DNI, demand at least the removal (if not the prosecution requested by multiple members of Congress, including the author of the PATRIOT Act, and a majority of the American public) of an executive branch official whose unreliability were so publicly demonstrated. At the 2014 CATO surveillance conference broadcast on C-SPAN a few months ago, I had a chance to briefly interview the DNI's chief lawyer (at 59:50):
I basically asked a senior government official how he rationalizes the presence of separate -- and very unequal -- systems of justice in America. On the one hand, we plebes are subject to arbitrary violence even prior to adjudication (i.e., police murder with impunity for allegedly selling cigarettes, or drone assassination for speaking out against US policies without ever raising a weapon).
Yet sometimes the hand of justice seems remarkably restrained: powerful officials escape not only arbitrary violence in retaliation for suspected crimes but also any pretense at justice, facing neither judges nor prosecutors and even continuing to draw taxpayer funded paychecks and pensions despite committing vastly more serious crimes documented on the public record -- like the CIA committing torture, then destroying evidence, then hacking the Senate to steal its documents, then filing false charges with the Justice Department, and then lying about all of that to try to cover it up!
Litt (whom I professionally admire and respect, and whose willingness to have this exchange in public I deeply appreciate, especially given its sharp distinction from his boss' apparent reluctance) admitted to giving "bad legal advice," though he dismisses as "kind of annoying" the insistence among observers around the globe that in fact "Clapper lied."
Here's the crucial question: why are they both still serving in government? And why isn't Clapper either in jail or facing a jury?
Eric Garner's alleged infraction was trivial relative to Clapper's proven crime against the American public, the Constitution, and the very future of freedom of thought -- yet Garner was killed without a trial, which Clapper has never even had to face.
False claims about the scope of mass surveillance went beyond the lawyerly impulse to bend language. We are talking about the creation of a corrupt enterprise diametrically opposed to the founding constitutional vision that inspired the world to follow our example.
While my name reflects my Asian origins, I grew up in rural Missouri. I was a Boy Scout. I tried to enlist in the Marines when I was 12 to "fight the Commies."
What drove me to such patriotic zeal was the specter of authoritarianism behind the Iron Curtain, of which mass surveillance -- like indefinite detention, and arbitrary profiling, or torture with impunity (all of which are also unfortunately well established here in the US) -- is a defining cornerstone.
As a quasi-refugee fleeing religious intolerance in my native country, freedom is not an abstract concept to me. Freedom is embodied, for instance, in the opportunity to have a private conversation with a friend, or business partner, or lover or life partner. Freedom is embodied in the right to a trial before someone kills you. And freedom is embodied in the principle that everyone plays by the same rules.
If we're going to lock up three million Americans (mostly of color, principally for reasons that in a growing number of states aren't even criminal anymore), we should be willing to increase the prison population by a few dozen more. And whether Litt, Clapper, and others complicit in covering up constitutional crimes (like Judge Jay Bybee or law professor John Yoo) ever face a prison sentence, they should at least face a judge like the rest of us.
If no prosecutor will force these questions before a judge, then Senators should ask them. And if no Senators ask them, well then...who will?
And why is posing a question about corruption now a criminal act, while the underlying acts of corruption -- using taxpayer dollars to spy on grandmothers and children, violating fundamental freedoms of incalculable worth, and then lying about it to cover it up and avoid unpleasant consequences -- are perversely rewarded?
I'm proud of posing the question I did after yesterday's hearing, and look forward to a court date on March 18 if anyone is stupid enough to prosecute me for this.
After getting some actual work done, I'll write separately about: