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That's not what Snowden showed. Like, not even close.
Clapper gave the correct, classified answer to Congress after the unclassified, televised to the public, hearing was completed.
To one Congressman, anyway, indirectly, probably. He said his staff gave Senator Wyden's staff the correct answer afterward. But, the next time I can find that he talked about it to anyone else in Congress was in an apology letter to the Senate Intelligence Committee a few months later, a couple weeks after Snowden's revelations.
This seems both still-damning (Yeah, I lied to Congress, but I did tell the truth to a staff member who said they told another staff member who should have told their boss who should have told everybody else purple monkey dishwasher!) and yet partially-exculpatory (why didn't Wyden just report the corrected answer himself, if he was confident that its classification was invalid, except that it only felt safe to get someone else to put their reputation on the line in that way?).
It's good that you're aware of who this was. Now think about it for a minute. Clapper was the Director of National Intelligence. In that role, he would have routinely given classified briefings to the Senate Intelligence Committee. I don't believe that anyone has ever claimed that he ever lied to them in any of those briefings. Those classified briefings are for the purpose of informing SSCI on what's actually going on.
This briefing was different. It was an unclassified, public briefing. The purpose was not to inform SSCI, especially not to inform them about classified matters. One might honestly wonder what the point of it even was... or whether it's even almost a contradiction in terms to have an unclassified, public briefing on covert intelligence programs. So when you think about it, you realize that the point of this briefing was not to inform SSCI about what's going on; the point of it was for the government to sort of get together and try to somewhat inform the public about what's going on. Doing so on a covert intelligence program sort of requires that everyone plays well together to inform on the things that "should" be publicly revealed, while avoiding things that "should" stay classified and secret.
Of course, the rub is that folks might have different perspectives on "should". Perhaps Wyden genuinely thought that it "should" become public. But the fact of the matter is, from Clapper's seat, it was classified. I think almost no theory of how the government should operate is such that it should be really relying on him to make that determination on his own. Yes, he has Original Classification Authority, but in reality, that's still pretty limited. For matters concerning significant programs like this, frankly, he shouldn't be out on his own in up and deciding to declassify it in the middle of a random briefing. That sorta thing should mostly be a matter for the President, possibly in consultation with folks like SSCI, with plenty of secret deliberation before pulling the trigger.
As such, Wyden was basically the turd in the punchbowl, preferring to pursue his own vision of "should" over the purpose of what those sorts of hearings are about. That's fair enough; he's a Senator. But it makes it more difficult for future such hearings to do the job as intended; if there's a real concern that even a single Senator will go rogue, I imagine they're probably going to pull back and be less informative generally.
I think the follow-on of what happened afterward is mostly just noise; again, there's no doubt that SSCI received the correct answer, both before and after this one briefing. They certainly already knew exactly what these programs were doing; they certainly had already gotten classified briefings telling them such; afterward, I highly doubt anyone had any real claim to having been misled... except of course, if you're a Senator talking the press, trying to drum up votes for yourself or trying to make something that is classified unclassified. Wyden even gave up the game with responding to it with a request for DNI to officially correct the public record (that is, put classified information in the public record).
It's hard to tell if Wyden genuinely thought it should be public, but didn't want to take the hit of actually revealing it himself... or if he was just trying to figure out a way to drum up more votes by playing the anti-SIGINT character. Whereas it's much easier to figure out that Clapper was just trying to keep classified stuff classified, play along with the supposed point of such an unclassified briefing, and then ultimately end up scrambling to perform damage control from such a bizarro event.
I can't help feeling that once you get to the point where you're telling clear, absolutely 100% barefaced lies to public representatives in public on a question of massive public interest, you're reaching 'Here be Dragons' on the map of morals. "If such programs existed, they would be classified and I would be unable to discuss the subject" is about as far as I think you can go before you're in serious danger of losing your soul.
I would expect that most people who get into the military or intelligence game (or, frankly, politics) have to at some point wrestle significantly with morality/their soul. Taking a brief look at his career on Wikipedia, I wouldn't be surprised if "didn't blow a classified program when a Senator went rogue, but still obviously kept the public representatives informed" didn't rank in the top ten of situations where he might have thought there was moral difficulty in doing what he thought was in the interest of protecting you and yours.
I should at some point note that I'm saying this as someone who detests his politics. Honestly, some of the political stuff he did was significantly worse than "not blowing a classified program when a Senator went rogue, but still obviously kept the public representatives informed".
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The correct answer in the unclassified hearing then was "I cannot answer that.", citing the relevant classification statutes, not lying to Congress under oath like he did.
Do you beat your wife? Is the correct answer to that, "I cannot answer that"?
This is pretty loaded terminology. Is it "lying to Congress" to say one thing about a classified program in a public Congressional forum and then give to Congress the correct, classified answer thereafter? Has Congress been lied to? Like, I get it. You're wanting to say that he lied to the public, and that may be true and scandalous, but it still doesn't sound as bad, so you have to juice it up a bit.
As I wrote here, when I tried to trace back this claim, I couldn't find good evidence for it. TBH, I think it would be kind of unusual for people to be under oath in those types of hearings.
He was legally restricted from answering questions that reveal classified information in open hearings. I'm not aware of any laws typically preventing someone from answering the question "Do you beat your wife?".
It is lying to Congress to knowingly give a false answer to a direct question by a Congressman in a Congressional hearing. It does not matter if the lie was attempting to hide classified information. It does not matter if the truth is later revealed in a classified briefing. It does not matter if the lie was intended to be theater for the plebes. It is still lying to Congress. He could have refused to answer as I described, which would have been both legal and true.
True, but irrelevant to the point. I'll ask again. Do you beat your wife? Is the correct answer to that, "I cannot answer that"?
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Clapper was under oath, and had been given the question in advance by Ron Wyden's office, and asked very deliberately about "any type of data at all". It's a joke that Clapper is allowed to work for think tanks and CNN as a "respectable" expert.
I tried to follow this claim back when the event happened. I couldn't find any authoritative source that actually claims it. I even went back and watched the CSPAN feed of the event, and there was no oath taken or shown. But it's sort of meaningless, anyway. He also took an oath to not divulge classified information outside of narrow circumstances.
Clapper is a clown, and I don't care about him generally, but it's a stupid stupid hill to die on to claim that anyone should be put in that situation. Frankly, that's Wyden's fault, and he should know better.
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That is certainly what Snowden showed. The usual sternlightian argument is to point out that they only collected it wholesale, they didn't actually look at it except through their keyword system. I do not find that particularly reassuring.
Nope. Still wrong. Please just educate yourself on this. I've been over this with you before. There's a nice PCLOB report and everything that detailed how it actually worked. You just need to read it. As a quick check to see if you have read enough to have any idea how any of it works, what is the meaning of "specific selection term" and what role does it play in this supposed "wholesale collection"?
Nothing, because "specific selection term" was about call data record collection, which they were doing wholesale (the "Pre-2015 Bulk Collection Program"). The PCLOB report claims that they've stopped doing that wholesale as of June 2, 2015, instead requiring only CDRs up to two hops of a "specific selection term".
Charitably, your comment is acknowledging that there is a difference between the CDR program and the program that collected the contents of internet communications. Moreover, your comment acknowledges that this conversation is about the program that collected the contents of internet communications. To all of this, I agree.
Now, you're telling me that you've read the PCLOB report on the program that collected the contents of internet communications, the program that is the subject of this conversation, and you can't find anything about specific selection terms in it?
Yes, those are obviously two different programs. The CDR program was actually revealed slightly before the big Snowden reveal, though I believe it turned out Snowden was the source of the earlier leak as well.
The NSA was tapping the communications between datacenters of Internet providers, and by doing so they obtained access to all such communications. Any filtering they did according to selectors was done AFTER they had the data.
Now, you're telling me that you've read the PCLOB report on the program that collected the contents of internet communications, the program that is the subject of this conversation, and you can't find anything about specific selection terms in it?
EDIT: Remember, you had said that the role was, "Nothing".
The report on internet communications does not appear to use the specific term "specific selection terms". The report on CDR data does.
ROFL. You got me. Oh boy, did you get me. It uses the term "specific selectors" and often just the unqualified "selector" to refer to them. I see just how much you weigh being intentionally obtuse versus actually understanding how things work.
So now that we've all had a little laugh, perhaps you could now describe what you think specific selectors are and what their role is in the program? And perhaps try to be serious this time, moving the conversation toward a shared understanding of how the world works.
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This depends on a very narrow reading of "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... but upon probable cause" that, to my knowledge, hasn't seen any precedent at the Supreme Court level. In fact, the secrecy of the entire apparatus seems largely to exist to circumvent judicial and democratic review.
The Ninth and Second Circuits were both okay with it. Would it be nice to get it up to SCOTUS? Sure. I don't recall if any of those plaintiffs petitioned for cert.
One note is that your analysis actually needs to start a step earlier. They are collecting the contents of communications of foreigners on foreign soil. We have black letter Supreme Court precedent that the Fourth Amendment doesn't apply to them. So, your challenge (which has so far failed in the circuit courts) is to demonstrate that one even needs to parse that text in the first place.
Room 641A is distinctly in San Francisco. The Ninth Circuit case involving it largely resolved because Congress granted retroactive immunity in 2008.
The foreigners are the ones on foreign soil. The Fourth Amendment attaches to people.
Congress gave retroactive immunity to telecoms for potential violations of statutes. Congress can provide such immunity with a further statute. Congress cannot, with a further statute, simply provide an exception to the Fourth Amendment. So, the 4A question remains separately.
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