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Monday, February 24, 2014
I’m going to have a story published later today about a new document, but until then, this new interview with (and profile of) Director of National Intelligence James Clapper by the Daily Beast‘s Eli Lake is worth spending a few moments examining
Director of National Intelligence James Clapper, testifying on Capitol Hill in Washington, Wednesday, Jan. 29, 2014, before the Senate Intelligence Committee (AP Photo/Pablo Martinez Monsivais)
I’m going to have a story published later today about a new document, but until then, this new interview with (and profile of) Director of National Intelligence James Clapper by the Daily Beast‘s Eli Lake is worth spending a few moments examining. Last week, Lake published oneexcerpt of his interview where Clapper admitted that the U.S. Government should have told the American people that the NSA was collecting their communications records: as pure a vindication of Edward Snowden’s choice as it gets, for obvious reasons. But there are several new, noteworthy revelations from this morning’s article:
Thanks to rogue contractor Edward Snowden, the machinations of the shadow bureaucracy Clapper heads have for the last eight months been exposed one news story at a time. Clapper is often the guy who has to call newspaper editors to tell them not to print stories that they usually publish anyway.
For all the NSA stories published over the last eight months all around the world, the U.S. government was notified prior to publication (usually very shortly prior) by the news organizations’ editors (never, to my knowledge, by the journalists, at least not by me). News organizations do this for two reasons.
The first is legal: the U.S. Government insists that the publication of classified information, especially that which relates to “communications intelligence”, is a felony (see 18 U.S § 798), so every media lawyer vehemently argues that allowing the government an opportunity to make the case for why something shouldn’t be published is necessary to show a lack of criminal intent, i.e., to avoid criminal prosecution even while publishing top secret documents; the other is journalistic: it makes sense that journalists making choices about what to publish and what to say about documents would want more, rather than less, information when deciding.
I can’t speak for what The Washington Post or New York Times have done, but for the NSA articles on which I’ve worked – at the Guardian and with more than a dozen media outlets around the world - the government has argued in most cases that the story and accompanying documents should not be published. And in almost every single case – 99% if not more – those arguments have been rejected in their entirety and the stories and documents were published anyway. In fact, for the dozens and dozens of stories and documents on which I’ve worked, I can only recall a single case where anything the government said resulted in anything being withheld that we had decided to publish, and that was a trivial aspect of one part of one document which, unbeknownst to us, could have revealed the identity of an NSA employee (the Guardian and New York Times, without my involvement,both withheld some details on their story aboutNSA/GCHQ compromising of encryption standards, though primarily – as I understand it – because publishing the handful of compromised standards we knew about would mislead people into believing the other compromised standards (the vast majority of which weren’t revealed by the documents) were safe).
In every single other case, the government’s arguments for non-publication were rejected, usually because they were vague and unpersuasive. So while it’s true that the government’s input has been permitted prior to publication – just as journalists seek the input of anyone about which they’re writing – Lake is correct that in most cases (in my experience, almost all) that official input demanding suppression was rejected, exactly as it should have been.
To this day the U.S. government doesn’t know the full extent of what Snowden revealed or whether more documents that have yet to be published in the press have made their way into the hands of Russian or Chinese intelligence agencies.
It’s been rather amazing to watch not only the standard roster of government-loyal American journalists, but also those who fancy themselves some sort of cynical critics, uncritically regurgitate the government’s evidence-free assertion that Snowden took and then gave to journalists 1.7 million documents. It amazes me because: (1) anyone at this point who is willing to equate evidence-free government assertions with Truth is drowning in some extreme levels of authoritarianism, by definition; and (2) the government clearly has no idea what Snowden took, as report after report has made crystal clear.
Covering nearly an entire wall of the waiting area outside Clapper’s office is a wooden relief sculpture dedicated to the U.S. Constitution. It contains a flag, a rendition of the constitutional assembly, and a copy of the document itself. It also has a plaque that reads, “What is the magic of the Constitution? The magic is how it states: We, the people. For the first time in history, government was about the people, not about the leader.”
Yes, that’s right: James Clapper has converted the wall outside of his office into a flamboyant homage to the very same U.S. Constitution that he vandalizes on a daily basis. That is the greatest act of either deliberately overt contempt for the public or pathological self-delusion since Barack Obama advocated a legalized system of “preventive detention” in 2009 while he stood in front of the U.S. Constitution at the National Archive. Someone may want to explain to Clapper that a primary impetus for that Constitution, and for the American Revolution generally, was hatred of the King’s “general warrants” whereby people could be subject to searches without a whiff of evidence of wrongdoing.
Clapper also acknowledges that the very human nature of the bureaucracy he controls virtually insures that more mass disclosures are inevitable. “In the end,” he says, “we will never ever be able to guarantee that there will not be an Edward Snowden or another Chelsea Manning because this is a large enterprise composed of human beings with all their idiosyncrasies.”
That is indeed true, and it’s good news: more Chelsea Mannings and Edward Snowdens are inevitable, and there is nothing the U.S. Government can do to stop them. That’s good news because it means government officials will have to operate on the assumption that what they do in the dark will become public (an excellent deterrent) and because that type of transparency is inherently healthy in a political culture where secrecy is rampant and the institutions designed to check it (Congress, the media, the federal judiciary) have all profoundly failed.
This also underscores why the U.S. Government has been so vindictive in trying to punish the likes of Manning and other whistleblowers. Since they have no means of preventing these sorts of leaks, their only hope is to create a climate of fear and intimidation: if you are thinking about exposing our bad acts, look at what we did to Chelsea Manning or Tom Drake and think twice. That’s why it’s been so vital – and, for the U.S. national security state, so devastating – that Edward Snowden has remained out of their grasp: rather than getting to parade him in front of the world in an orange jumpsuit and shackles, U.S. officials are forced to watch as he is hailed as an international hero, receives award after award, and participates freely in the debate he triggered. That, in turn, allows the template he used to be a positive one, one that will undoubtedly inspire future whistleblowers.
[Democratic Sen. Ron] Wyden in a statement told The Daily Beast, “It’s true that no one knows what is going through a witness’s head when they are sitting at the witness table, other than the witness himself. Unfortunately, over the past several years a number of senior officials have repeatedly made misleading and inaccurate statements about domestic surveillance at congressional hearings and in other public settings.”
The lie Clapper criminally told to the U.S. Senate in March, 2013 has received the bulk of attention, but as Wyden makes clear, NSA and other senior officials have been repeatedly lying about U.S. surveillance to the Congress, to courts, and in public over and over about all sorts of things. That’s what makes the slavish equating by the U.S. media of “unproven NSA claims” with “truth” so embarrassingly subservient and irrational. It’s also what makes the eagerness of American journalists to demand Snowden’s imprisonment – contrasted with their fear of doing the same for Clapper – such a powerful illustration of their true allegiances and function.
Others are less charitable. Last month Sen. Rand Paul, the libertarian Republican from Kentucky, said if Snowden was to face justice, he should “share a jail cell with James Clapper” for lying to Congress.
“Well Senator Paul says I should get to know [Snowden] by being in the same prison cell with him, which I don’t think is a good idea,” Clapper told The Daily Beast last week. “Probably wouldn’t be in Mr. Snowden’s best interest.”
This statement – half creepy prison fantasy and half threat – is unsurprising. The need for U.S. officials to publicly express a desire for violence when it comes to Snowden has asserted itself over and over.
Recall how House Intelligence Committee Chairman Mike Rogers and former CIA/NSA chief Mike Hayden “joked” at a hearing that Snowden should be put on the U.S. government’s “hit list” and murdered. Last month, BuzzFeed quoted several anonymous Pentagon and intelligence community officials as they laid out their fantasies for how they would like to murder Snowden (“Going back to his flat and he is casually poked by a passerby. He thinks nothing of it at the time starts to feel a little woozy and thinks it’s a parasite from the local water. He goes home very innocently and next thing you know he dies in the shower”). Former CIA chief James Woolsey said “he should be hanged by his neck until he is dead” if convicted of treason, while former UN Ambassador John Bolton revealed an even more detailed fantasy: “My view is that Snowden committed treason, he ought to be convicted of that, and then he ought to swing from a tall oak tree.”
Not only does this underscore the warped pathologies among the glorious leaders of America’s National Security State, but it also highlights the inanity of believing that these kinds of people can and should be trusted with invasive spying powers to be exercised in the dark.
The charges against his integrity bother Clapper. “I would rather not hear that or see that,” he said. “It’s tough on my family, I will tell you that. My son is a high school teacher and he has a tendency, or he is getting over it, to internalize a lot of this.” Those who know and have worked with Clapper also say it’s unfair to call him dishonest. Rhodes said President Obama values Clapper because “he’s a straight shooter who doesn’t put any spin on the ball.”
But what’s even more amazing is that Clapper considers himself some sort of victim rather than what he is: the completely undeserving beneficiary of a system of “justice” in which ordinary and powerless people are imprisoned for trivial offenses at greater numbers than any other nation in the world, while those who wield political power, like him, are free to commit crimeswithout even losing their powerful jobs, let alone being prosecuted for them. James Clapper should look in the mirror every morning and be extremely grateful for the corrupted political system that has shielded him from the consequences of his crimes even as he tries to criminalize others for doing things that the U.S. Constitution guarantees them the right to do.
Instead, he sees himself as the victim. He has medals on his chest and an important national security state position. It is simply outrageous that some people suggest that he has no right to commit felonies, and it’s infuriating that his adult son has to hear some people (almost none in the media) suggest that his criminal conduct should have the same consequences as when ordinary citizens commit less serious crimes. That’s the refusal to accept any personal responsibility, the view of powerful U.S. officials that they are and must be entirely above the law, the obsessive self-regard, that more than anything else has destroyed Washington’s political culture.
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Yesterday, the German paper Bild am Sonntagreported that after President Obama ordered the NSA to cease its eavesdropping on the communications of Chancellor Angela Merkel, they responded by increasing their surveillance of her closest ministers and advisers. Aside from providing yet another illustration of the out-of-control entitlement that drives the U.S. Surveillance State, note that the report is based on “a high-ranking NSA employee in Germany”, which means that this is yet another NSA source to come forward to disclose the agency’s once-secret acts.