Director of National Intelligence James Clapper now has a fifth reason for why he lied to the US Congress over the NSA's spying program: he just plain forgot it existed.
Speaking during a panel discussion last week, Clapper's general counsel Robert Litt said that Clapper had not had time to prepare an answer to the question posed to him by Senator Ron Wyden (D-OR) about storing data on Americans.
"We were notified the day before that Sen. Wyden was going to ask this question and the director of national intelligence did not get a chance to review it," Litt said, according to The Hill.
"He was hit unaware by the question. After this hearing I went to him and I said, 'Gee, you were wrong on this.' And it was perfectly clear that he had absolutely forgotten the existence of the 215 program."
If that answer sounds incredibly unlikely, it is actually more plausible than the other four reasons Clapper has given over why he denied the existence of the NSA's spying programs.
Clapper's first response when revelations from Edward Snowden made it clear he thought Wyden was just talking about the collection of email. That argument held no water, as a recording of the session clearly showed Wyden asking a very clear question that made no mention of email.
He asked: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
Clapper's second response – about a week later – was to impugn Wyden by saying that he had asked a loaded question. Being interviewed on NBC and asked "Can you explain what you meant when you said that there was no data collection on millions of Americans?", Clapper responded:
In retrospect, I was asked – 'When are you going to stop beating your wife' kind of question, which is meaning not answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.
When that response was widely mocked, a month later Clapper came up with yet another reason for his entirely incorrect response: it was an honest mistake.
"My response was clearly erroneous – for which I apologize," he said in a letter to the intelligence committee. "While my staff acknowledged the error to Senator Wyden's staff soon after the hearing, I can now openly correct it because the existence of the metadata collection program has been declassified. Mistakes will happen, and when I make one, I correct it."
Except of course, Clapper didn't correct it. After his response to Wyden, the Senator sent a letter the next day asking him if he wished to change his response: Clapper's office responded with a clear "No."
That doesn't square with what general counsel Litt says he said to Clapper: "After this hearing I went to him and I said, 'Gee, you were wrong on this.'" If Clapper and his general counsel knew he was wrong, why did they refuse the offer to change his answer?
Answer number four fits a little with Litt's latest explanation: Clapper claims he was caught unawares by the question and was worried about the implications of admitting the spying program. He told a security summit in Washington DC:
When I got accused of lying to Congress because of a mistake ... I had to answer on the spot about a specific classified program in a general, unsecure setting.
But Senator Wyden had in fact sent the question to Clapper's office a full 24 hours before the hearing in order to avoid that very situation. Litt acknowledges that happened, but now claims Clapper didn't have time to review the question: even though it would clearly have been immediately flagged up by his staff prior to the hearing.
Litt's explanation that Clapper had simply forgotten about the 215 program – which used section 215 of the Patriot Act to insist the government had the right to collect the metadata of every single phonecall made in America but was found to be illegal when finally questioned in court – then ties back to Clapper's first explanation: he thought Wyden was talking about email.
"If you read his answer it is perfectly clear that he was thinking about the 702 [email] program," Litt reportedly said. "When he is talking about not wittingly collecting, he is talking about incidental collection."
Litt went on: "This was not an untruth or a falsehood. This was just a mistake on his part."
It was a mistake. And one that, despite more than two years passing and five explanations for why what Clapper said was the diametric opposite of the truth, still did not seem adequately explained. Unless of course you assume that Clapper figured no one would ever find out the truth.
Despite repeated efforts to have Clapper investigated for perjury, the Department of Justice has refuse to provide a response on whether it will do so for two years.
Here for posterity's sake is that exchange back in March 2013, also available in video form.
Senator Ron Wyden, who is on the Senate Intelligence Committee and so knew the broad details of the NSA's mass surveillance program, asked Clapper at a Congressional hearing: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
Clapper answered precisely: "No sir." Wyden was clearly taken aback and asked again: "It does not?" And Clapper was equally clear: "Not wittingly. There are cases where they could, inadvertently perhaps, collect – but not wittingly."
It was the blatant falsehood that Edward Snowden later revealed was the spark that led him to disclose thousands of secret documents detailing exactly how much information the US government did in fact collect on hundreds of millions of Americans. ®