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.