Clapper's Actions: Lawful Or Not?

James Robert Clapper Jr., a retired lieutenant general in the United States Air Force and former Director of National Intelligence, has been accused of breaking the law on several occasions. One of the most notable accusations is that Clapper lied to Congress about the National Security Agency's (NSA) collection of telephone metadata on millions of Americans, which led to accusations of perjury and calls for his resignation. Clapper has also been involved in legal cases such as American Civil Liberties Union v. Clapper, which challenged the NSA's bulk telephone metadata collection program, and Clapper v. Amnesty International USA, which dealt with the Foreign Intelligence Surveillance Act. Additionally, Clapper has been accused of making misleading statements about Russian interference in the 2016 US election and has faced scrutiny for his role in private intelligence contracting.

Did James Clapper commit perjury?

In March 2013, James Clapper, the then-Director of National Intelligence, testified before the Senate that the National Security Agency (NSA) does "not wittingly" collect "any type of data at all on millions or hundreds of millions of Americans." However, in June 2013, leaked documents revealed that the NSA had been collecting telephone metadata on millions of Americans' calls.

Clapper was accused of perjury and faced calls for his resignation. He defended himself by saying that he had made a "big mistake" and that he did not understand the question, thinking of a different surveillance program at the time. He also claimed that the question should not have been asked in an open hearing due to its classified nature.

Legally, perjury is committed when a witness knowingly makes a false material statement under oath. While Clapper's statement was false and material, it is hard to prove that he knowingly made the statement, as he would only need to raise a reasonable doubt in one juror's mind to avoid conviction.

Despite this technicality, many, including lawmakers, legal experts, and journalists, believed that Clapper's actions warranted his dismissal. However, the White House expressed its continued support for Clapper, and he remained in his position until his resignation in November 2016.

Clapper v. Amnesty International USA

The case was a challenge to the FISA Amendments Act of 2008, which empowers the Foreign Intelligence Surveillance Court to authorize surveillance without a showing of probable cause that the target of the surveillance is an agent of a foreign power. The plaintiffs, attorneys and human rights, labour, legal, and media organizations, were United States persons who claimed that they engaged in sensitive international communications with individuals whom they believed were likely targets of section 1881a surveillance.

The plaintiffs alleged that they sustained greater inconvenience and higher costs because of the need to conduct secure communications with parties overseas whom the US government had probably targeted for surveillance. The challenge was brought against James Clapper, Director of National Intelligence.

The Court dismissed the case, following the US government's argument that "the claims of the challenges that they were likely to be targets of surveillance were based too much on speculation and on a predicted chain of events that might never occur, so they could not satisfy the constitutional requirement for being allowed to sue."

Justice Samuel Alito, writing for the majority, stated that "respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending."

Justice Breyer, in dissent, said that the case should have proceeded to trial, writing that the spying "is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen."

Clapper's involvement in the NSA scandal

James Clapper, former Director of National Intelligence, was involved in an NSA scandal in 2013. Clapper was accused of perjury for telling a congressional committee hearing that the NSA does not collect any type of data on millions of Americans. However, following a leak of documents by Edward Snowden, it was revealed that the NSA had been collecting telephone metadata on millions of Americans' telephone calls. Clapper later admitted that he had made a mistake in his testimony, but denied that he had lied, claiming that he had forgotten about the relevant section of the Patriot Act. Despite calls for his resignation and accusations of criminal perjury, Clapper remained in his position until 2016.

The NSA scandal centred around the agency's bulk collection of metadata from Americans' telephone calls. This practice was revealed by Edward Snowden, a former NSA contractor, who leaked documents detailing the program to the media in 2013. Snowden's leak sparked a public uproar and led to increased scrutiny of the NSA's secret spying programs.

Clapper's involvement in the scandal began with his testimony before a congressional committee hearing in March 2013. When asked by Senator Ron Wyden if the NSA collects "any type of data at all on millions or hundreds of millions of Americans", Clapper responded, "No, sir. Not wittingly." This response proved to be false, as the leaked documents later revealed.

Following the leak, Clapper acknowledged that the NSA does collect telephony metadata on millions of Americans' calls. This metadata included information such as the originating and terminating telephone number, call duration, and International Mobile Station Equipment Identity (IMEI) number, but did not include names, addresses, or financial information. Clapper claimed that the data collection was permitted under Section 215 of the Patriot Act and was necessary for national security.

Clapper faced intense criticism and accusations of perjury for his false testimony. In his defence, he claimed that he had simply made a mistake and forgotten about the relevant section of the Patriot Act. He also argued that the question had required a classified answer, which he could not provide in an open hearing. Despite these explanations, many, including Senator Wyden, did not accept Clapper's defence and called for his resignation.

In addition to the perjury accusations, Clapper also faced legal challenges over the NSA's surveillance program. In 2013, the American Civil Liberties Union (ACLU) filed a lawsuit against Clapper and other defendants, challenging the bulk collection of metadata as a violation of the Fourth Amendment. However, the United States District Court for the Southern District of New York dismissed the lawsuit, finding that the collection did not violate the Constitution.

The NSA scandal had significant implications for Clapper's career and the public perception of the intelligence community. Clapper's initial denial of the data collection and subsequent admission of error damaged his credibility and led to calls for his resignation. The scandal also sparked a broader debate about the balance between national security and privacy, with some arguing that the NSA's secret spying programs infringed on civil liberties.

Clapper's resignation

James Clapper's resignation as Director of National Intelligence in 2016 marked the end of a turbulent tenure defined by the Snowden revelations of NSA surveillance and accusations of perjury. Clapper, a retired lieutenant general in the United States Air Force, had a long career in the intelligence community, holding several senior positions, including Director of the Defense Intelligence Agency and the National Geospatial-Intelligence Agency.

Clapper denied lying to Congress, stating that he had made a mistake and misunderstood the question. He argued that the NSA program was necessary to track foreign communicants talking to individuals in the US and that it was implemented as a result of the 9/11 terrorist attacks. Despite calls for his resignation from some senators, Clapper remained in his position until the end of President Obama's term in January 2017.

Clapper's views on President Trump

James Clapper, the former Director of National Intelligence, has been a vocal critic of President Donald Trump. Clapper has questioned Trump's fitness for office, calling his access to nuclear codes "pretty damn scary". He has also accused Trump of "ignorance or disrespect" and warned of an "internal assault on our institutions". Clapper has also opined that the Trump-Russia scandal is more serious than Watergate.

Clapper and Trump used to share similar views on data collection. However, their relationship soured when Clapper resigned as Director of National Intelligence in November 2016, effective at the end of President Obama's term. Trump lashed out at Clapper on Twitter, sarcastically calling him "an authority on Donald Trump". Trump also accused Clapper of lying under oath to Congress, which led to calls for Clapper's resignation and investigations into whether he had committed perjury.

Clapper has since fired back at Trump's claims, stating that he did not lie but rather made a mistake during his testimony. He has also expressed support for CIA Director Gina Haspel and agreed with former acting FBI Director Andrew McCabe's opinion that Trump could be a "Russian asset".

In October 2018, Clapper was targeted by a mailed pipe bomb, alongside several Democratic officials and other critics of Trump.

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