We Can Handle the Truth

I don’t believe government officials when they say the National Security Agency’s surveillance programs do not invade our privacy. The record suggests that you shouldn’t believe them, either.

It pains me to sound like some Rand Paul acolyte. I promise I’m not wearing a tinfoil hat or scanning the leaden sky for black helicopters. I just wish our government would start treating us like adults — more important, like participants in a democracy — and stop lying. We can handle the truth.

The starkest lie came in March at a Senate intelligence committee hearing, when Sen. Ron Wyden, D-Ore., asked Director of National Intelligence James Clapper a simple question: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper replied, “No, sir.”

As we’ve learned from former NSA analyst Edward Snowden, Clapper’s answer was patently false. The agency collects metadata — essentially, a detailed log — of many and perhaps all of our domestic phone calls.

Lying to Congress is a serious offense; baseball legend Roger Clemens was tried — and acquitted — on criminal charges for allegedly lying about steroid use at a congressional hearing. The chance that Clapper will face similar peril, however, is approximately zero.

Following Snowden’s revelations, Clapper said that an honest answer to Wyden’s question would have required him to divulge highly classified secrets, so he gave the “least untruthful” answer he could come up with. Clapper apparently believes that “least” is a synonym for “most.”

In a recent letter to the intelligence committee, Clapper said he thought Wyden was asking about the content of domestic communications — which the NSA says it does not collect “wittingly,” for what that’s worth — rather than about the metadata. “Thus, my response was clearly erroneous,” Clapper wrote, “for which I apologize.”

He sounded like the cheating husband, caught in flagrante by his wife, who feigns surprise and says, “What mistress? Oh, you mean that mistress.”

Clapper’s defenders say Wyden unfairly asked a question that he knew the director could not answer. But Wyden says he sent the question to Clapper’s office a day in advance — and gave him the chance to amend his answer afterward.

Also untrue is President Obama’s assertion that the NSA surveillance programs are “transparent.” They are, in fact, completely opaque — or were, until Snowden started leaking the agency’s secrets.

By what authority does the government collect data on our private communications? We don’t know. More accurately, we’re not permitted to know.

Section 215 of the Patriot Act allows the FBI to seek warrants “requiring the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities.”

Seizing records that pertain to an investigation is not the same thing as compiling a comprehensive log of billions of domestic phone calls. How has the law been stretched — I mean, interpreted — to accommodate the NSA’s wish to compile a record of our contacts, associations and movements? The government refuses to tell us.

We know that permission for this surveillance was granted by one or more judges of the Federal Intelligence Surveillance Court. But the court’s proceedings and rulings are secret. We don’t know what argument the government made in seeking permission to conduct this kind of vacuum-cleaner surveillance. We don’t know what the court’s legal reasoning was in granting the authority. We don’t know whether the court considers other laws so elastic.

We do know that the court’s secret hearings are not adversarial, meaning that there is no push-back from advocates of civil liberties. And we know that since its inception the court has approved more than 30,000 government requests for surveillance warrants and refused only 11.

I accept that the administration officials, Justice Department lawyers, federal judges, FBI agents and NSA analysts involved in the phone call surveillance and other programs are acting in good faith. The same is true of members of the House and Senate intelligence committees, who are supposed to be providing oversight. But honorable intentions are not enough — especially when we know that much of what these honorable officials have told us is false.

The biggest lie of all? That the American people don’t even deserve to be told what their laws mean, much less how those laws are being used.

Eugene Robinson’s e-mail address is eugenerobinson(at)washpost.com.

© 2013, Washington Post Writers Group