Paul Campos, a professor of law at the University of Colorado at Boulder, explained why National Director of Intelligence James Clapper might or might not be convicted of perjury, were he tried for the crime he seems to have committed back in March.[1]  --  Clapper was asked:  "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”  --  Later, he claimed that he did not perjure himself with his answer ("No, sir -- not wittingly") because "when someone says ‘collection’ to me, that has a specific meaning, which may have a different meaning to [Sen. Wyden]."  --  Sure it does.  --  Campos calls this defense "extremely implausible."  --  On Monday Reuters reported that in an online forum run by the Guardian Snowden referred to Clapper's testimony, saying that "seeing him 'baldly lying to the public without repercussion is the evidence of a subverted democracy. The consent of the governed is not consent if it is not informed.'"[2]  --  Snowden said being called a "traitor" by former Vice President Dick Cheney was "the highest honor you can give an American."  --  "He also called on Obama to appoint a special committee to review the surveillance programs.  --  'This disclosure provides Obama an opportunity to appeal for a return to sanity, constitutional policy, and the rule of law rather than men,' he said.  --  'He still has plenty of time to go down in history as the President who looked into the abyss and stepped back, rather than leaping forward into it.'"  --  "Snowden said he had not had any contact with the Chinese government, and he took care not to reveal any U.S. operations against military targets."  --  COMMENT:  We have a suggestion:  instead of prosecuting Edward Snowden, prosecute James Clapper.  --  Which is more serious, a high-level American official deliberately seeking to mislead the American people and its elected representatives while testifying under oath, as James Clapper did, or a low-level employee's leaks intended to enlighten the American people about what is being done secretly and illegally in their name?  --  How you answer this question says a lot about your political philosophy and your values.  --  Let's prosecute James Clapper -- and Dick Cheney, too, come to think of it....
1.

HOW JAMES CLAPPER WILL GET AWAY WITH PERJURY

By Paul Campos

Slate
June 12, 2013

http://www.salon.com/2013/06/12/how_james_clapper_will_get_away_with_perjury/

Did National Director of Intelligence James Clapper commit perjury when he testified before the Senate in March?  The answer to this question isn’t as straightforward as it appears to be.  As a practical matter, however, it’s the wrong question to be asking about Clapper’s behavior.

Clapper was asked by Sen. Ron Wyden, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No, sir . . . not wittingly.”

Now this is what an ordinary person would call a “lie.”  Ordinary people also believe that perjury is lying under oath.  But lawyers are not ordinary people, and, as a technical legal matter, the situation is more complicated.

If the question of whether Clapper committed perjury is understood to mean, “Would the government (if it were inclined to prosecute Clapper, which it won’t) be able to prove beyond a reasonable doubt that Clapper’s response violated the federal perjury statutes?” the answer is, “Maybe, maybe not.”

Legally speaking, perjury is hard to prove, because it’s a highly technical offense.  As a matter of federal law, a witness commits perjury if he knowingly makes a false material statement under oath.  Clapper was under oath, his statement was false, and it was material to a legitimate governmental investigation.  (The materiality requirement is intended to eliminate so-called “perjury traps,” in which a witness is asked a question for no other reason than to try to get him to perjure himself.)

Nevertheless, the government would not have a slam dunk perjury case against Clapper, if it chose to prosecute him.  This is because, to secure a perjury conviction, the government must prove beyond a reasonable doubt that the witness knew his statement was false.  No doubt relying on the advice of counsel, Clapper has already deployed what could be called the “it depends on what the meaning of ‘collect’ is” defense.

In an interview with NBC’s Andrea Mitchell, Clapper used a metaphor for what the intelligence services are doing, in which he compared gathering information about phone conversations, as opposed to actively listening to those conversations, to tracking the Dewey Decimal System numbers of books on a library shelf, as opposed to actually reading the books:  "To me, collection of U.S. persons' data would mean taking the book off the shelf and opening it up and reading it . . . And this has to do with of course somewhat of a semantic, perhaps some would say too -- too cute by half [definition].  But it is -- there are honest differences on the semantics of what, when someone says ‘collection’ to me, that has a specific meaning, which may have a different meaning to [Sen. Wyden]."

Now this strikes me as an extremely implausible defense, especially in response to the question “Does the NSA collect any type of data at all on millions of Americans,” which in retrospect was obviously phrased by Sen. Wyden in this way in an attempt to stop Clapper from engaging in what even Clapper admits sounds like disingenuous semantic quibbling.  (It’s also worth noting that Sen. Wyden provided Clapper with the questions he would be asked the day before the hearing, and gave him an opportunity the day afterward to modify or retract any of his testimony.)

But just because a defense sounds implausible, that doesn’t mean it can’t be successful.  Clapper would merely need to raise a reasonable doubt in one juror’s mind regarding whether he knew his statement was false.  Would he be able to do so?  That’s what Washington’s top white-collar criminal defense lawyers are paid $800 per hour to find out.

But in the end, that question should be irrelevant to the real question of the moment, which is whether there’s a good enough basis for concluding that Clapper lied to the Senate under oath, with “good enough” here meaning “good enough for the purposes of firing him.”

That is not -- nor should it be -- a technical question of criminal law, and you don’t have to be a lawyer to recognize that the answer to it is obvious.

--Paul Campos is a professor of law at the University of Colorado at Boulder.


2.

SNOWDEN HITS BACK AT CRITICS OF NSA LEAKS

By Deborah Charles and Laura MacInnis

Reuters
June 17, 2013

http://www.reuters.com/article/2013/06/17/us-snowden-forum-trial-idUSBRE95G0NQ20130617

The former National Security Agency contractor who revealed the U.S. government's top-secret monitoring of Americans' phone and Internet data fought back against his critics on Monday, saying the government's "litany of lies" about the programs compelled him to act.

Edward Snowden told an online forum run by Britain's Guardian newspaper that he considered it an honor to be called a traitor by people like former Vice President Dick Cheney, and he urged President Barack Obama to "return to sanity" and roll back the surveillance effort.

Taking questions from readers and journalists, Snowden talked about his motivations and reaction to the debate raging about the damage or virtue of the leaks.  Snowden remains in hiding, reportedly in Hong Kong.

Snowden said disillusionment with Obama contributed to his decision but there was no single event that led him to leak details about the vast monitoring of Americans' activity.

"It was seeing a continuing litany of lies from senior officials to Congress -- and therefore the American people -- and the realization that Congress . . . wholly supported the lies," said Snowden, who had worked at an NSA facility in Hawaii as an employee of contractor Booz Allen Hamilton before providing the details to the Guardian and Washington Post.

Snowden referred to Director of National Intelligence James Clapper's testimony to Congress in March that such a program did not exist, saying that seeing him "baldly lying to the public without repercussion is the evidence of a subverted democracy.  The consent of the governed is not consent if it is not informed."

The Justice Department has opened a criminal investigation into Snowden's actions, and U.S. officials promised last week to hold him accountable for the leaks.

Since Snowden went public in a video released by the Guardian on June 9, many U.S. lawmakers have condemned his actions and intelligence officials have said the leaks will compromise national security.

Some lawmakers have been more restrained.  Republican Senator Rand Paul, a Tea Party favorite, has said he is reserving judgment about Snowden's methods, and separately encouraged Americans to be part of a class-action lawsuit against the U.S. government for the surveillance programs.

Snowden, who traveled to Hong Kong before details of the programs were published, has promised to stay in the China-ruled former British colony and fight extradition.

China made its first substantive comments on Monday regarding Snowden's revelations.  A Chinese Foreign Ministry spokeswoman said that Washington should explain its surveillance programs to the world, and she rejected a suggestion that Snowden was a spy for China.

Snowden said during the online forum on Monday that he does not believe he can get a fair trial in the United States.

"The U.S. government, just as they did with other whistleblowers, immediately and predictably destroyed any possibility of a fair trial at home, openly declaring me guilty of treason and that the disclosure of secret, criminal, and even unconstitutional acts is an unforgivable crime.  That's not justice," he said.

Obama and administration officials have defended the program as an effective tool in its effort to protect Americans from terrorist attacks and said it was instrumental in helping to disrupt dozens of potential attacks.

General Keith Alexander, director of the NSA, will testify on Tuesday at a House of Representatives Intelligence Committee hearing on the programs.

Officials have promised to make public details on some of the thwarted attacks, and a U.S. government source familiar with the matter said more than 25 cases were on a list that spy agencies were trying to declassify for Tuesday's hearing.

During his question-and-answer session with Guardian readers, Snowden rejected criticism from defenders of the surveillance programs -- including Cheney -- that he was a traitor for leaking the details.

'THE HIGHEST HONOR'


"Being called a traitor by Dick Cheney is the highest honor you can give an American, and the more panicked talk we hear from people like him . . . the better off we all are," Snowden said.  Cheney was instrumental in the expansion of surveillance programs after the September 11, 2001, terrorist attacks.

Snowden said he had not had any contact with the Chinese government, and he took care not to reveal any U.S. operations against military targets.

"I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous," he said.

Snowden answered about 18 questions on the Guardian's website during the session, which lasted more than 90 minutes and drew more than 2,000 comments and questions.

He said he was disappointed that many of Obama's campaign promises had not been realized.

"He closed the door on investigating systemic violations of law, deepened and expanded several abusive programs, and refused to spend the political capital to end the kind of human rights violations like we see in Guantanamo, where men still sit without charge," Snowden said.

He also called on Obama to appoint a special committee to review the surveillance programs.

"This disclosure provides Obama an opportunity to appeal for a return to sanity, constitutional policy, and the rule of law rather than men," he said.

"He still has plenty of time to go down in history as the President who looked into the abyss and stepped back, rather than leaping forward into it."

Snowden said he was encouraged by the public debate over privacy rights and the limits of government that sprung up in the aftermath of the disclosures.

But now, he said, the media was more concerned with "what I said when I was 17 or what my girlfriend looks like rather than, say, the largest program of suspicionless surveillance in human history."

Snowden's father, Lonnie, said in an interview on Fox News that he hoped his son would return to the United States to fight any potential criminal charges.

"I would like to see Ed come home and face this. I shared that with the government when I spoke with them.  I love my son," he told Fox, adding "I hope, I pray" that he does not commit any acts that could be considered treason.

"I sense that you're under much stress (from) what I've read recently, and (ask) that you not succumb to that stress . . . and make a bad decision," Lonnie Snowden said in an interview published on the channel's website.

He denied press reports that his son was a high school dropout, saying that after a lengthy illness at the start of his sophomore year, his son enrolled in community college and eventually got a high school equivalency degree.

(Additional reporting by Mark Hosenball, Jackie Frank and Patricia Zengerle; Writing by John Whitesides; Editing by Karey Van Hall and Tim Dobbyn)