In 2013, then-Director of National Intelligence James Clapper lied to Congress.
On March 12 of that year, while testifying before the Senate, he was asked whether the National Security Agency (NSA) was collecting data on millions of Americans. He falsely answered, “No, sir.” Democratic Oregon Sen. Ron Wyden had provided the same question to Clapper in advance of the hearing and allowed him an opportunity afterward to correct the public record, but Clapper chose instead to sustain the false statement.
President Obama and thousands of others throughout our national security establishment in Washington most likely knew and tacitly approved of this deliberate deception about NSA’s surveillance program, which violated the privacy of over one hundred million Americans.
Had it not been for Edward Snowden’s revelations weeks later, we would most likely never have learned about the NSA’s massive data collection efforts and it might still be operational. In responding to the truthful reports that emerged from numerous press accounts, Clapper admitted that he had knowingly lied to Congress when he stated in an MSNBC interview that he responded to Senator Wyden’s question with the “least untruthful” answer he could give.
Even after this admission, Obama administration officials advanced two clearly erroneous narratives: one that Clapper had not understood the question, and another that he had “forgotten” about NSA’s aggressive data collection operation.
It is a felony to lie to Congress and reprehensible to cover up such a legal violation. Yet there is not one iota of evidence that the Department of Justice even investigated the crime despite calls by many members of Congress – mostly Republicans – to prosecute Clapper or jeopardize the constitutional authority of Congress to oversee the Executive Branch of the federal government.
As Republican Kentucky Rep. Thomas Massie stated in the Washington Examiner, “He admitted to lying to Congress and was unremorseful and flippant about it….The integrity of our federal government is at stake because his behavior sets the standard for the entire intelligence community.”
Obviously, Edward Snowden also violated the law. He revealed classified information to a few media outlets. We as a nation are now at a crossroads. Having allowed perjury to go unpunished and having covered up the intention of the perjurer, does the Department of Justice and intelligence community now have the moral right to prosecute Edward Snowden — the truth-teller about an unconstitutional program – as a spy? To do so would be a miscarriage of justice that only a pardon can fully remedy.
As for Snowden, he had no way forward. In 2010 to end a stalemate on whistleblower rights for non-intelligence federal employees, Congress removed all whistleblower protections for intelligence agency employees and contractors. In an inadequate effort to counter this setback for potential intelligence whistleblowers, President Obama issued an executive order. Intelligence agencies, including Clapper’s National Intelligence Directorate, resisted the reform so strenuously that it was not operational nearly three years later at the time of Snowden’s disclosures to the media.
Despite this resistance and the resulting delays at the time of Snowden’s revelations, intelligence community leaders, other Obama administration leaders and the president himself condemned Snowden for not availing himself of an executive order process that did not even exist.
Furthermore, the same nonexistent process would not even have included him because contractors were largely excluded from the executive order. In fact, President Obama repeatedly lied in public statements about the extent of the coverage of the executive order and the fact that it was not even fully operational.
In an earlier failed effort to prosecute a completely innocent whistleblower — Thomas Drake — Department of Justice attorneys declared in federal court that whistleblowers are worse than spies because spies provide information to just one government that is paying for the information while whistleblowers provide information to every country. Given the history of what we have now all seen play out in regards to national intelligence secrecy and dishonesty, the real truth of the matter is that Snowden and other national security whistleblowers before him have faced criminal investigation, home invasions by FBI SWAT teams with guns drawn and prosecution because they have revealed the truth to the American public.
A pardon will not excuse perjury, rectify violations of the rule of law, sanction cover-ups or justify lying to the public about unconstitutional violations of privacy. It will, however, provide a giant step forward toward putting to rest a shameful undemocratic legacy. It will signal an important step toward national security reforms that hopefully will not require intelligence agency contractors or employees who become whistleblowers to commit civil disobedience in order to expose corruption and perjury.
Louis Clark is the Executive Director and Chief Executive Officer of Government Accountability Project, the nation’s leading whistleblower protection organization.