James Clapper (Official US government portrait in public domain)

The self-serving admission by Director for National Intelligence James Clapper that the government should have never kept secret a program under the PATRIOT Act to collect the phone records of all Americans may be further affirmation of the fact that former National Security Agency Edward Snowden is a whistleblower. It also reflects unwavering confidence in the government position that the collection is entirely legal, constitutional and not wrong at all so, therefore, it probably could have been made public without upsetting Americans.

On February 17, Clapper told The Daily Beast’s Eli Lake:

…”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 [under the PATRIOT Act]—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,” Clapper said.

“What did us in here, what worked against us was this shocking revelation,” he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. “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.”…

But it is important to understand and illuminate what Clapper is not saying with this statement, something Lake did not do in his report (probably because it would have upset Clapper who gave him the “exclusive” to share his developed view for public relations purposes).

Clapper, who still denies that he lied to Congress about NSA surveillance, is not saying that the American people should have debated this program. This is known because there never really was a debate on “fingerprints” after 9/11. There was no debate on whether TSA would setup and expand security checkpoints that would likely violate the privacy of Americans. That happened and those who did not accept it were treated as if they had no understanding of what it means to keep the country “safe” from terrorists. So, this is not a statement that Congress probably should have openly debated whether to have a phone records collection program.

He most certainly is not suggesting the courts would have been able to review the program. The government still would have invoked “state secrets” and done everything possible to prevent judges from hearing cases that challenged the executive power of those in government.

What Clapper has finally come to terms with, because it is in his interest to say something like this to preserve this program in some form, is that some official could have publicly stated this existed and the program would be used for protecting national security.

Based off talking points from the NSA, this is probably what would have been said to the American people had the program’s existence been public: the government must “make sure” it “connects the dots” so “the nation is never attacked again like it was on 9/11.” This program will work through all three branches of government with “legal authorities and rigorous oversight.” It would make it possible to disrupt future terrorist attacks. “Terrorists” use the “full spectrum of global communication tools” and this would make it possible to “lawfully provide critical, timely intelligence to US government leaders and our allies.” Now, the country could detect “telephone contact between terrorists overseas and operatives within the United States.”

What Clapper’s view exemplifies is the pragmatic calculation within government that what is revolting to Americans is that they won’t share enough about what they are doing and keep details that they shouldn’t secret. The issue is not that any of these national security programs or policies are illegal, unconstitutional or wrong. Nobody in government, for a moment, believes that to be the case because they have all signed off on it.

As Clapper said to Lake in his defense of the phone records collection,  ”For me it was not some massive assault on civil liberties and privacy because of what we actually do and the safeguards that are put on this…To guard against perhaps these days low probability but a very (high) impact thing if it happens.”

Something Lake did not bother to include because it might encourage criticism of what Clapper was saying—and this is an “exclusive” so we can’t have that—is the New America Foundation, a Washington-based policy institute, concluded after conducting a study of 225 terrorism cases that the surveillance program had not prevented any terrorist attacks. The US intelligence community also deliberately tried to mislead Congress and the public for months by suggesting 54 plots had been thwarted or that “dozens” of plots had been thwarted, which was false.

Lake is so enamored with the fact that Clapper gave him an interview that this illogical analogy for defending the program is not questioned at all:

Clapper compared the 215 program to fire insurance. “I buy fire insurance ever since I retired, the wife and I bought a house out here and we buy fire insurance every year. Never had a fire. But I am not gonna quit buying my fire insurance, same kind of thing.”

“Fire insurance” is typically for people whose houses or property have burned down. They collect money to pay for the damage done so they can rebuild their lives. So, if this phone records program is similar—let’s call it “terrorism insurance”—Clapper is at least unwittingly suggesting the program is not for preventing terrorist attacks. It is for after people die and things blow up and tragedy strikes this country in the form of attacks. But, of course, those following this issue know Clapper is not operating this program as a kind of “fire insurance.” He actually believes, without any evidence from the history of the program’s operation, that it will prevent terrorist attacks.

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Let’s return to the increasingly expressed belief among government officials that if some semblance of a public relations operation is coordinated around potentially controversial national security programs the American people are likely to accept the programs’ existence.

This is a result of bipartisan national security consensus in government. Clapper can say what he is saying because President Barack Obama has taken policies of President George W. Bush, which were not conducted openly, and further entrenched them in government while at the same time working to do a better job selling it all to Congress and the public.

Former Office of Legal Counsel lawyer under Bush, Jack Goldsmith, wrote in 2009 about how Obama had brought “legitimacy to terrorism policies.” He embraced using the “state secrets” privilege to block cases against government from moving forward in courts. He voted for the FISA Amendments Act, which legalized warrantless wiretapping, and he did not seek to narrow or limit government surveillance powers. He created a loophole for detaining prisoners on a “short-term, transitory basis” leaving open the possibility that secret prisons could be utilized.

Obama adopted almost the same policy for rendition, which only prohibits rendition if there is more than a fifty percent chance the suspect will be tortured. He employed a targeted assassination policy to a far greater extent than Bush. He embraced military commissions for Guantanamo Bay prisoners. He refused to extend habeas corpus rights to prisoners being held at Bagram prison in Afghanistan. He neglected to oppose the detention of terrorist suspects without trial. He granted the same level of rights to Guantanamo Bay prisoners as Bush. And, most significantly, he ”embraced the Bush view that, as a legal matter, the United States is in a state of war with al Qaeda and its affiliates, and that the president’s commander-in-chief powers are triggered.”

The bipartisan national consensus, which the national security state enjoys, makes it possible for national security agency officials to make casual immodest remarks about secrecy. They can be pretty confident that threats to their operations will not come from politicians.

Now, there is the issue of the courts and the reality that Clapper is rewriting history. (He’s in the right company. Lake is just the journalist for any official looking to fabricate their own version of how events progressed.)

Journalist Marcy Wheeler has highlighted how the phone records collection program actually arose out of the warrantless wiretapping program under Bush. From a draft Inspector General’s report dated March 24, 2009:

…According to NSA General Counsel Vito Potenza, the decision to transition telephony metadata to the Business Records Order was driven by a private sector company. After the New York Times article was published in December 2005, Mr. Potenza stated that one of the PSP providers expressed concern about providing telephony metadata to NSA under Presidential Authority without being compelled. Although OLC’s May 2004 opinion states that NSA collection of telephony metadata as business records under the Authorization was legally supportable, the provider preferred to be compelled to do so by a court order…

The New York Times article was by Eric Lichtblau and James Risen and revealed warrantless wiretapping.

In conclusion, Clapper or any other government official can claim to any journalist willing to give them a platform that Americans would not have been outraged, but that ignores how the program was developed in an effort to conceal illegal surveillance and provide cover for US companies involved. The collection is similar to general warrants, indiscriminate and arbitrary in nature. It is a way to circumvent checks intended to constrain law enforcement and surreptitious searches violate the rights of Americans.