Rather than “scorching” Clapper, Sen. Wyden responded: “I thank you for the answer.” Sen. Wyden had even supplied the question in advance. In June 2013, after the Snowden revelations, everyone knew that Clapper had lied. We can be pretty confident that Sen. Wyden knew that Clapper was lying back in March 2013.
How do we know this? Because in August 2013, in an attempt to justify the blatantly illegal NSA spying, the Obama administration released a white paper which said: ”information concerning the use of section 205 to collect telephony data in bulk was made available to all Members of Congress.” Sen. Wyden is a member of the Senate Select Committee on Intelligence and, thus, in a better position than nearly all members to know what was going on. If he didn’t, he was surely not much of an asset to the committee. So why didn’t he challenge Clapper’s lie back in April?
The entire question-in-advance exercise may well have been a deliberate attempt by Sen. Wyden to mislead the American people about the scope of government spying. From this perspective, in the wake of the Snowden revelations, Sen. Wyden is a modern-day Captain Renault: “I’m shocked, shocked to find that gambling is going on in here!”
The countervailing argument is that Sen. Wyden was barred from challenging Clapper’s answer because to do so would reveal classified information. But if that were true, then what purpose would be served by asking the question in the first place? Sen. Wyden would then be asking a question that could not be honestly answered without committing a crime. The possibility remains that the answer Sen. Wyden was seeking was: ”I cannot answer your question.” Under this theory, Sen. Wyden would have been stymied by the lie.
The problem with this theory is that there is no reason to believe Sen. Wyden would have suffered prosecution for responding to Clapper by saying “you, sir, are a liar”— instead of “thank you for your answer.” Sen. Mike Gravel once read the top-secret Pentagon Papers into the record during a congressional subcommittee meeting. The United States Supreme Court refused to let prosecutors even investigate the crime, stating: ”We have no doubt that Sen. Gravel may not be made to answer – either in terms of questions or in terms of defending himself from prosecution – for the events that occurred at the subcommittee meeting.”
Moreover, Sen. Wyden could also have invoked standing procedures of the Senate Select Committee on Intelligence under section 8 of S. Res. 400, which provides that the committee “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” Sen. Wyden did attempt to seek declassification of legal opinions concerning the meaning of the intelligence statutes, but he did so in a way that was not effective, and a release of legal theories is a far cry from letting Americans know that he and his fellow members of Congress have already constructed a surveillance state of immense and sinister proportions at taxpayer expense.
The people of Portland may believe that Sen. Wyden is their privacy hero, but I have serious doubts. An essential quality of a hero is courage, and a courageous senator would have attacked Clapper immediately and worked effectively to bring about declassification of patently-illegal surveillance programs. But for Snowden, we can have no confidence that Sen. Wyden would have ever told us what was really going on. And unless and until Sen. Wyden explains what was going on back on March 23, 2013, it will be hard to tell whether the efforts he sometimes seems to make are real or just a shadow play for the voters. Above all else, a real hero for privacy would not fund the construction of the surveillance programs in the first place.