Perjury By Permission: Clapper Apologizes For False Testimony And The Congress Remains Silent

220px-James_R._Clapper_official_portraitAF cover 4I previously wrote a column how our country seems to have developed separate rules for the ruling elite and the rest of us. There is no better example than the lack of response of the Senate to the admitted perjury of Director of National Intelligence James Clapper before Congress. While the Justice Department has prosecuted people for the smallest departure from the truth, including testimony before Congress, no one in the Senate is calling for an investigation, let alone a prosecution, of Clapper. For his part, Attorney General Eric Holder is continuing his political approach to enforcing the law and declining to even acknowledge the admitted perjury of Clapper. Now, in a truly bizarre moment, Clapper has written a letter of apology like an errant schoolboy to excuse his commission of a felony crime . . . and it appears to have been accepted. What is curious is that we do not have letters from senators like Dianne Feinstein apologizing to doing nothing when they were all aware that Clapper was lying in his public testimony. Welcome to America’s Animal Farm.

When National Intelligence Director James Clapper appeared before the Senate, he was asked directly, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No, sir. … Not wittingly.”

We now know that was a lie. Moreover, many of the senators who heard that testimony knew it was a lie because they admitted later to knowing about the NSA program to gather data on every citizen. Later, Clapper said that his testimony was “the least untruthful” statement he could make. Yet, of course, that would still make it an untrue statement — which most people call a lie and lawyers call perjury. Indeed, when Roger Clemens was prosecuted for untrue statements before Congress, he was not told of the option to tell the least untrue statement on steroid use.

Now, he has added an “oops, my bad” letter addressed to Senate Intelligence Committee Chairwoman Dianne Feinstein. She was an obvious choice. Feinstein has led the move to erode privacy protections for citizens and was fully aware that his testimony was false. If he were to be prosecuted, it would be embarrassing for her. She has been in this position before. Feinstein and other Democratic leaders were aware of the torture program under Bush and did nothing. They then worked to block any moves to investigate and prosecute torture under our treaty obligations — cases that would have exposed Democratic members like Feinstein who knew and did nothing.

That was the same approach to Clapper’s perjury. Clapper struggles in the letter to suggest that he was confused — though he earlier said that it was a calculated answer. Since the question was given to him in advance (something the public is never informed of in these highly choreographed hearings), it is rather implausible. He now says that “simply didn’t think of” the pertinent section of the Patriot Act under which that information can be collected. It seems an effort to get Feinstein and other off the hook in suggesting that it was not premeditated, though the Justice Department routinely rejects that argument in other cases. Clapper simply wrote “Thus my response was clearly erroneous — for which I apologize.” That’s it.

By the way, that means that the answer to the following question is “yes”: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans? Feinstein and other members have insisted that they are not collecting such data on citizens.

For its part, the media is cooperating. Few are addressing the obvious perjury or past cases prosecuted on far less. After all, Clapper is one of the ruling elite and not the great unwashed public. The result is perjury by permission, a new exception to criminal acts for the governing elite.

73 thoughts on “Perjury By Permission: Clapper Apologizes For False Testimony And The Congress Remains Silent

  1. I have a pending motion for sanctions against DoJ part of which is that they lied to my congressman. DoJ has not responded. The ECF computer gave them until Friday.

    DoJ told my congressman that they had no contact with me before a civil hearing. But I was a federal prisoner for 4 months before that hearing.

    DoJ told my congressman that my imprisonments were ordered by a magistrate. In fact, they were ordered by the chief federal judge in Colorado. That is significant because if you google Edward Nottingham you will find that the 10th Circuit said he asked a prostitute to lie to investigators and say that they were just dating when they actually had a business prostitution long lasting arrangement.

    DoJ told my congressman that I sued third parties under diversity only when I specifically sued them under 42 USC section 1983, went on and on about the state and local statutes that were violated, and had even filed in federal court, on PACER, a letter from the local d.a. saying they have no written statement of probable cause that I committed a crime. I was prosecuted anyway and the police report says they were called because I accused the city council president of violating the zoning and the constitution.

    DoJ told my congressman that they had searched the prosecutor’s PROMIS system in Western Wisconsin for records about me. They also sent letters to me saying that. But I got a letter from them yesterday acknowledging that they have no report showing that they ever searched the PROMIS system in Western Wisconsin for records about me. I was a federal prisoner there after DoJ sent a fax to the sheriff saying I was wanted for a federal felony. A felony I was never charged with, which required a grand jury indictment which DoJ never requested.

  2. The US is in a state of Constitutional crisis. We have been so under Bush where officials refused subpoenas to testify before Congress, as well as lied under oath. This continues and has intensified under Obama.

    Congress refuses to act as a separate branch of govt. We thus have an executive branch which is out of control, working from secret orders given to ever more secret public/private entities, powers which they do not lawfully have. We are in real trouble in the US.

    It is disturbing to see how cowed and complicit Congress acts. Too many of these people know what has been going on and approved of it (this includes things like torture and rendition). They would rather the public not know about their complicity. Therefore, they keep silent.

    No terrorist could have destroyed the rule of law more completely than what has been done here. As a US citizen I never signed up for nor gave assent to torture, rendition, imprisonment of the innocent or anyone without fair trial, drone killing, endless warfare and mass surveillance. I want Congress to act as a functioning branch of govt. I do not believe they will.

  3. Clapper needs to be prosecuted. The country needs Clapper to be prosecuted. If no prosecution occurs it spells a very public end to this country being a nation of laws.

  4. One of my former clients spent a year in prison on a perjury conviction for testifying about his personal understanding of a telephone call he was NOT on, while the prosecutors (now Chief White House Counsel and general counsel/Deputy Director of the FBI) hid the truth, yet our elected officials, including our Attorney General can perjure themselves freely before Congress. It’s the Department of INjustice, and the foxes are in the hen house. see http://www.seeking-justice.org

  5. When Bubba Clinton would play a round of golf he would usually take about 9-10 mulligans. This is just a political mulligan. When are you all going to learn that there are 2 sets of rules, and we citizens are @ the shit end of the duopoly system.

  6. The comparison to the Animal Farm is particularly apt. All people may seem to be equal but some people are more equal than others. Cops, government officials, and the politically connected who can lie with impunity and never be prosecuted but woe onto the average citizen who fails to be completely truthful in response to a government inquiry

  7. nick spinelli 1, July 3, 2013 at 10:30 am

    When Bubba Clinton would play a round of golf he would usually take about 9-10 mulligans. This is just a political mulligan. When are you all going to learn that there are 2 sets of rules, and we citizens are @ the shit end of the duopoly system.
    ============================
    The Egyptians may be setting the example of how to react to our demise.

  8. It is not just Clapper. As soon as Congress let Cheney and Bush not swear to tell the truth about thier knowledge of the events of 9/11, then the descent really took off.

  9. Longterm, the best way to serve the American people is a Truth Commission that offers conditional immunity from prosecution in exchange for the whole truth. Of course that means releasing the lower-level personnel from prison and expunging their records, people like Kiriakou, Manning, etc. If the big fish (that betrayed their oath of office) get a pass then the little fish (that upheld their oath of office) should be released also. This is the only way to really reform this totalitarian monster!

  10. Clapper is just one of many politicians that need to be brought up on charges. Unfortunately, some of them are already out of office. When there are two separate rules of law for the wealthy and connected and those of us who are not wealthy and connected, it is not a healthy thing for our democracy.

  11. Thanks for staying on this, Prof. Turley.

    (Now if you could just agree that money is not speech. :O))

  12. This will signal the complete length congress and the president will go to sanction Clapper. And Professor Turley has described the situation exactly, one form of justice for the elites.

    It is also glaringly obvious the gov’t can now do whatever neferious and illegal actions it deems fit, but anyone who exposes these deeds the gov’t will go to any length to punish that individual.

  13. Presume that the government registers everything on here. I hereby expressly reserve all rights granted to me under the Constitution and I expressly reserve all rights without enumeration of same.
    That said, it is my hope that someone with sufficient abilities and unwavering ethics. finds a way to address the disparity in the application of the rule of law, to expressly focus on those that ignore its application, both the wealthy and the poor. Well, at least it would make a good movie. Heard it here first.

  14. Jill
    1, July 3, 2013 at 10:12 am
    “The US is in a state of Constitutional crisis. We have been so under Bush where officials refused subpoenas to testify before Congress, as well as lied under oath. This continues and has intensified under Obama.”
    ____________
    Agreed, absolutely.

    ________________________________________

    It has been interesting to me that Clapper (spits) felt the need to lie. He should have refused to answer on the basis that the information was classified. Period. That’s what you are supposed to do if pressed for information that is classified by people that have not been made known to you as having a need to know and the corollary clearance level to know.

    Of course that would have led to other, politically embarrassing questions and invited a view of the conflict between the Executive, the security infrastructure, Congress and the citizenry. Maybe even initiate a battle over it if anyone in that political/military milieu was actually interested in doing their job.

    Since Clapper had the questions n advance I think he answered in a predetermined manner that would take the focus off of the real issue(s) and put it on him- a side-show, a distraction letting everyone off the hook. You can’t isolate his testimony from the bigger picture.

  15. Maybe we need a Claptrap Blog. Or better yet a FeinSteinClapTrapBlog. When you are 80 years old the book 1984 does not seem to be out of jive.

    Clapper needs to quit. Old Lady Feinstein needs to go to the old farts home. Wyden needs to show some backbone or snakebone and call Clapper on the carpet for his turding on the Congressional carpet.

  16. And collecting Metadata does not mean that they read your emails. Tell that to the Instagram kid in the other post today.

  17. This model of society has been in place/advancing, or evolving, if you will for a long long time. I am surprised that anyone in the field has not written a book on it. It is certainly most refined, but it is merely an extension of what came from the Greeks, the Romans, the Gauls, the Celts, etc. Go back earlier if you will, but just as with Novels there are only so many plots. This is a refinement of many previous steps. The beauty is that mankind always finds a way to take the next step. The competition, or joinder, of the development that has paralleled the western development, as aptly represented by China, Japan, Korea and India, is now on. If the development of the middle east should re-surface, then it would be most marvelous. Should be interesting to see what ethic survives in those that rule, by force, by the pocketbook, or by means not yet defined, because as you can see in the pattern, a new way is at least logical.

  18. neighbordave: “This model of society has been in place/advancing, or evolving, if you will for a long long time.”
    —-

    yes it has and it’s going shamelessly worldwide. Does anybody else think it’s strange that the President of Bolivia was virtually kidnapped by Europe? Undoubtedly at our urging. Unprecedented imperialist acts seem to be happening at a record pace domestically and internationally.

  19. The govt holds the monopoly on filing criminal charges.

    A person can be guilty as sht, but if the presiding prosecutor declines to prosecute, then there will be no prosecution.

    There should be some empowerment of the unwashed masses in this, somehow give them the right to file charges if the govt won’t do it.

  20. But wait! There’s More!
    Today in the Washington Post they discuss metadata collection of postal transfers and the copying of the covers of letters and packages:

    By RON NIXON

    Published: July 3, 2013 496 Comments

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    WASHINGTON — Leslie James Pickering noticed something odd in his mail last September: a handwritten card, apparently delivered by mistake, with instructions for postal workers to pay special attention to the letters and packages sent to his home.

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    Mail Covers: Snail Mail Surveillance

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    “Show all mail to supv” — supervisor — “for copying prior to going out on the street,” read the card. It included Mr. Pickering’s name, address and the type of mail that needed to be monitored. The word “confidential” was highlighted in green.

    “It was a bit of a shock to see it,” said Mr. Pickering, who with his wife owns a small bookstore in Buffalo. More than a decade ago, he was a spokesman for the Earth Liberation Front, a radical environmental group labeled eco-terrorists by the Federal Bureau of Investigation. Postal officials subsequently confirmed they were indeed tracking Mr. Pickering’s mail but told him nothing else.

    As the world focuses on the high-tech spying of the National Security Agency, the misplaced card offers a rare glimpse inside the seemingly low-tech but prevalent snooping of the United States Postal Service.

    Mr. Pickering was targeted by a longtime surveillance system called mail covers, a forerunner of a vastly more expansive effort, the Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images.

    Together, the two programs show that postal mail is subject to the same kind of scrutiny that the National Security Agency has given to telephone calls and e-mail.

    The mail covers program, used to monitor Mr. Pickering, is more than a century old but is still considered a powerful tool. At the request of law enforcement officials, postal workers record information from the outside of letters and parcels before they are delivered. (Opening the mail would require a warrant.) The information is sent to the law enforcement agency that asked for it. Tens of thousands of pieces of mail each year undergo this scrutiny.

  21. I think that we should print some things on all of our outgoing mail envelops. Such as F U Clapper. Or on the back under the place where the envelop seals. These commercial places put all this apCray on there like Did You Sign Your Check? We could put: Did You Know That Clapper Lied To Congress?

  22. A rather naive article Mr Turley. Whilst I am certain you are perfectly correct on strict legal grounds on the nature of the testimony before Congress, it does not really matter at the end of the day because Mr. Clapper was doing what was expected of him by all those involved from the President (you no doubt voted for) down.

    The White House knew and approved of the spying program. Most of those in both the Senate and H of Reps knew and approved of the spying program. The answers that Mr Clapper gave to Congress would have been orchestrated and approved before he appeared. Everyone that mattered would have known that the answer he gave was going to be along the lines of what he said because no one ever considered that the truth would ever come out.

    What we have here is a classic example of Government officials, elected politicians and the President and staff all lying and deceiving the American public because they considered it to be in the national interest not to raise any suspicions whatsoever about the existence of these excessive and possibly illegal spying programs. Well it may be a surprise and revelation to you that the Administration and “Government” (especially a Democratic one) will lie to and mislead the public but there is nothing new in that. Now you have absolute proof that US Governments will freely deliberately lie, deceive and mislead especially when they believe they can get away with it.

    Now consider some of the litany of charges levied upon the brave and upstanding Mr Snowden who has really done nothing more than reveal proof that there is a comprehensive program of spying in collecting every email, phone, fax, text etc communication made within the USA and internationally both from and into the USA:-

    “unauthorized communication of national defense information”

    “willful communication of classified communications intelligence information to an unauthorized person”

    So had Mr. Clapper simply told “the public at large” via the hearing, in answer to the question – yes the NSA is collecting a whole range of data on all forms of communications by and with US residents – then he would have been dismissed from his post and very likely subjected to some of the same charges that are now being levied upon Snowdon. No doubt there would be some possibly even calling for treason charges as they have over Mr Snowdon……….

    “Today, several senators, including Dianne Feinstein, want Edward Snowden taken into custody, returned to the United States, and put on trial for treason, which Congress has a right to advocate for under the Constitution.

    “I don’t look at this as being a whistleblower. I think it’s an act of treason,” Feinstein, the chairwoman of the Senate Intelligence Committee told reporters. “He violated the oath, he violated the law. It’s treason.”

    Former U.S. Ambassador John Bolton told a Chicago radio show that Snowden should face treason charges.

    “He took an oath to keep the secrets that were shared with him so he could do his job. He said he would not disclose them, and he lied,” Bolton said. (My comment —By the way, so did Mr Clapper take an oath).

    Speaker of the House John Boehner also called Snowden “a traitor” in a Tuesday interview with ABC. “The disclosure of this information puts Americans at risk, it shows our adversaries what our capabilities are, and it’s a giant violation of the law.”

    So Mr. Clapper lies/misleads Congess(and the public) in a public forum by arrangement and apparently commits an offence with that lie or whatever. one deems to label it. By the same token if he tells the truth(as nearly everyone considers he should have) in answer to a very clear and direct question he would have been ridiculed and charged with also committing offences by revealing classified information to the public.

    The Clapper apology is just as orchestrated as everything else in this grubby exercise of Government /Administration lies, deception and Snowden bashing. Everyone involved, right up to the President, has been caught out in this conspiracy of silence and deception with these spying operations and now they are all in political damage control which involves, inter alia, justifying their actions and demonising Mr. Snowden.

    Hindsight is a wonderful thing. The intention of Government at large was to suggest to the public that there was not any kind of comprehensive spying on the public going on. They thought they could get away with it and Mr. Clapper was part of the orchestrated and deliberate deception obviously sanctioned/approved by Congress and the White House. He clearly did what was expected of him in what Government would consider were national security and national interest considerations.

    Bagging on about the legalities of Mr. Clapper’s testimony is a nice academic exercise but at the end of the day the guy is not going to be charged for keeping the secrets he was supposed to keep and by deliberately misleading which is what he was clearly expected and supposed to do.

    Given what Mr. Clapper knows of secret NSA operations about which we have no information, it would be a brave Government indeed that decided to make a sacrificial lamb out of this guy by throwing the law books at him over orchestrated comments to Congress and thus destroying what is left of his life. No that is not going to happen and it is naive to think it will. Mr Snowden is the target not Mr. Clapper. At worst, at some stage Mr Clapper might quietly slip away later this year with a nice big fat pay out and be conveniently replaced. At which point he, and the embarrassment that now attaches to him , would be quickly forgotten.

    Again a much more important issue now is whether these spying programs that we are all aware of thanks to the brave Mr Snowdon are in fact legal. If not, who is going to challenge them in the courts and on what legal basis.

  23. Even Jonathan Turley gets it? Is it freezing in Hell? John, this is possible because the media is part of the ruling class.

  24. I agree with Darren Smith. There are domestic diplomats who are punished for not liking their unjust endless penances .Is it too much to ask the conservative Orwellian elites like Mr Clapper just to admit that too many counter intuitive arguments only make the US electorate a numb country , incapable of communicating rationally . Maybe that’s the Orwelllian idea,behind the curtain , an intelligent design created by the conservatively suffocating behavorists elites

  25. Every state has to have a way to keep their security and their secrets for a reasonable period ; imagine if journalists opined on TV on November 23 , 1963 that JFK probably had had an adulterous affair with poor , haunted- by- her- phobias Marilyn Monroe . Sex and hormones are a part of life, ; grotesquly unfair manipulation should be exposed as a dysfunctional way to humiliate those the hypocritess don’t like and shouldn’t be a part of anyone;s experience .

  26. Orwellian Conservatives? Bush and Cheneys fault? What is this place? KOS lite for idiot Libtards?

    Liberals are Americas gravest threat and our Mortal enemies more so than the Soviet Union ever was.

    Tick effing tock Libidiots, the great American reset comes….

  27. What is so troubling is how little the citizens seem to care. Lie and perjure yourself to Congress. No big deal, no demands for justice. I really can’t blame this clown Clapper. He knows nothing will come of this because he a Democrat and won’t be held responsible for anything by a Democrat controlled Senate and the citizens aren’t paying attention anyway. Too busy getting free Obama phones and food stamps and disability

  28. ” The result is perjury by permission, a new exception to criminal acts for the governing elite.”

    One of the “unintended consequences” of this sort of corruption is the corruption of the system itself. I think this was well understood by the Constitution and so the underlying principle that no one is above the law was part of our founding fabric.
    As that fabric gets loosed by any systemic corruption, like this one, eventually it will not hold up under other stresses that once we could assimilate.
    We are slowly loosing our robustness and resiliency. After that a brief anarchy and then totalitarian systems come in to save the day. We are not immune from this principle.

    — On a related note of illustration : it all does remind me of the pigs in Animal Farm. Not to far into the “administration” they pigs were just a little more equal….

  29. Orin Kerr:

    The underlying question is a tricky one, though: How can you have public testimony about classified activities? Senator Wyden had been briefed about the NSA program, and he knew the answer to the question. So he intentionally asked Clapper the question to pressure Clapper to disclose the classified program. Clapper had three choices: Disclose the classified program, give “clearly erroneous” testimony, or clam up and say that he couldn’t answer (effectively saying “yes”). The only way to avoid being placed in that dilemma was not to testify at all. No good options there, at least if you accept that we want open testimony, that witnesses should tell the truth, and that classified programs should stay classified.

    Clapper could have said that any questions regarding collection would have to be discussed in a closed hearing. Not effectively saying “yes.”

  30. @davidleblanc699200142 : What is so troubling is how little the citizens seem to care.
    ——–
    Your statement here made me wonder why this might be. I don’t think it is 100% true, but it occurred that we don’t know how to care any more. Our news/information systems are largely house broken pets of the power they are meant to challenge. Certainly they are not functioning as the “adversarial” balance to power they were chartered with.
    And those outlets who are, and those who actually do some protesting are characterized as crazies or unpatriotic. (I refer to David Gregory’s now famous statement/question to Glen Grenwald.)

    I used to wonder why the Russian people, or more currently the N.Koreans wouldnt just rise up and challenge their governments. And it occurs that when all the news/information you get tells you a single thing you have no footing from which to mount a response.
    While our media is not yet so completely co-opted, in the main it is.

    Between this point and a related point of the feeling of powerlessness; “what does it matter if I protest or care…” sort of thing, go a ways towards responding to your point.

    It troubles me also. Thanks

  31. Clapper apologizes for lying and all is well.

    Will they leave him alone if Snowden apologizes for telling the truth?

  32. James Clapper wasn’t lying; he was simply being less than candid, an expression with which all lawyers are thoroughly familiar.

    As in, “That false affidavit presented by the prosecutor is a bald-faced instance of being less than candid, your Honor.”

  33. Michael Beaton is correct.

    “One of the “unintended consequences” of this sort of corruption is the corruption of the system itself. I think this was well understood by the Constitution and so the underlying principle that no one is above the law was part of our founding fabric.
    As that fabric gets loosed by any systemic corruption, like this one, eventually it will not hold up under other stresses that once we could assimilate.”
    We’ve already had an election theft.

    And now we have a government which refuses to do anything about high unemployment, or university students caught in enormous debts which aren’t dischargeable in bankruptcy…. and which is cutting food stamps.

    The people are not going to tolerate that for very long.

    “We are slowly loosing our robustness and resiliency.”

    Already lost it.

    “After that a brief anarchy and then totalitarian systems come in to save the day. We are not immune from this principle.”

    This is why, although I would like to avoid it, I really expect the violent overthrow of the government within the next couple of decades. It will not necessarily be overthrown by a totalitarian, but unfortunately a military strongman is most likely. The remote possibility of a democratic revolution would be superior but unlikely.

    “I used to wonder why the Russian people, or more currently the N.Koreans wouldnt just rise up and challenge their governments. And it occurs that when all the news/information you get tells you a single thing you have no footing from which to mount a response.
    While our media is not yet so completely co-opted, in the main it is. ”

    Yes. But remember…. the Russian people did eventually overthrow the government, when it just became too much (after the coup against Gorbachev). They did so in a disorganized and *centripetal* way, with the country breaking up into bits. The way it happened was that suddenly the people who had *some* power but were lower down on the totem pole saw an opportunity, and they took it.

    This is most likely what will happen here. The people in “second rank” positions — like Governor — have no reason to maintain the bloated, nonfunctioning system which props up the surveillance state, and if they see the chance to break it, they’ll take it.

  34. […] which, were crime on anyone’s mind, would essentially have been a confession.  Congress did nothing.  Just in case you wondered, Clapper remains the director of national intelligence with the […]

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