James Clapper: NSA Should Have Been More Up Front With Americans

By Spencer Ackerman, Guardian UK

18 February 14

James Clapper tells interviewer the spy agency could have avoided controversy by being up front with American citizens

he US director of national intelligence has conceded that the US government ought to have told American citizens that the National Security Agency collects their phone data in bulk.

James Clapper, whose misleading testimony to the Senate about the mass surveillance now overshadows his nearly four years atop the US intelligence agencies, continued to defend the bulk domestic phone, fax and other "telephony" data collection, as well as his honesty.

But in an interview released late Monday with the Daily Beast's Eli Lake, Clapper said that crucial moment was the first revelations from NSA whistleblower Edward Snowden on 5 June last year, when the Guardian revealed the bulk phone records collection, which claims legal authority under Section 215 of the Patriot Act. "What did us in here, what worked against us was this shocking revelation," Clapper said.

Clapper said that the controversy would not have occurred had the security apparatus been more open before. "I probably shouldn't say this, but I will. Had we been transparent about this from the outset right after 9/11 - which is the genesis of the 215 program - and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it's going to work, and why we have to do it, and here are the safeguards … We wouldn't have had the problem we had."

His admission contradicts months of warnings, from his office and from elsewhere in the administration, that disclosure of the bulk data collection jeopardized US national security.

"Terrorists and other adversaries of this country are going to school on US intelligence sources, methods and trade craft and the insights that they are gaining are making our job much, much harder," Clapper told the Senate intelligence committee last month - during which he implied that the journalists working off the Snowden documents were "accomplices" to the former contractor's alleged crimes.

But Clapper's admission also reflects a fight to preserve, in a modified form, the NSA's authorities to collect phone data in bulk at a time of great flux.

For months, the intelligence agencies have opted for a strategy of selective disclosure around the bulk surveillance, including speaking tours at colleges and legal associations and selectively declassifying documents from the secret Fisa court overseeing surveillance and publishing them on a Tumblr site; although many of those declassifications are the result of the government losing transparency lawsuits.

The gambit holds that if the government can reclaim the PR initiative from the news organizations publishing Snowden disclosures, it can withstand a push on Capitol Hill to restrain the NSA's powers.

"I don't think it would be of any greater concern to most Americans than fingerprints. Well people kind of accept that because they know about it. But had we been transparent about it and say here's one more thing we have to do as citizens for the common good, just like we have to go to airports two hours early and take our shoes off, all the other things we do for the common good, this is one more thing," Clapper told the Daily Beast.

Members of the House judiciary committee warned the Obama administration and the intelligence agencies on 4 February that unless they backed a bill to end the bulk domestic phone records collection, they would lose even more counter-terrorism powers under Section 215 when the provision expires in June 2015.

That bill, known as the USA Freedom Act, is the chief legislative vehicle to end the mass domestic metadata collection. But the Obama administration is formally undecided on how much phone metadata ought to be collected under a successor program that would be overseen by an as-yet-undefined private entity, a move that keeps bulk records collection in play as a policy option.

Earlier this month, Clapper's office put out a solicitation to private industry for ideas on how to structure that successor program. The NSA is expected to provide the White House with ideas for that program soon.

In his interview, Clapper continued to deny lying to Congress in March 2013, when he said the NSA did "not wittingly" collect data of any sort on millions of Americans, a lie he has apologized for.

As he has since July, Clapper insisted he "wasn't even thinking" of the bulk phone data collection during his March 2013 testimony, and suggested that only mind-readers could say for sure that he was lying.

"There is only one person on the planet who actually knows what I was thinking," Clapper told the Daily Beast. "Not the media, and not certain members of Congress, only I know what I was thinking."

But Clapper initially said that he provided the "least untruthful" answer he could in a public setting, not that his answer was unfocused on the bulk phone records collection. Additionally, aides to his questioner, senator Ron Wyden of Oregon, have repeatedly said they alerted Clapper's office to his error and unsuccessfully requested Clapper correct the public record.