"Respectfully, Jim." So ends a June 21 letter from James Clapper, Director of National Intelligence, to Senator Dianne Feinstein of California, explaining why on March 12 he told a Congressional committee that the NSA doesn't "collect any type of data at all on millions or hundreds of million of Americans." In his letter, Clapper offers his third version of an excuse: he misunderstood the question. Whichever five-year-old taught our government agencies how to be accountable for their behavior did a hell of a job.
Shortly after the Guardian reported on the existence of the government's collection of phone records and internet traffic through the National Security Agency, attention turned to Clapper's comments. After all, the exchange with Sen. Ron Wyden of Oregon (at right) was explicit. Clapper himself includes it in his letter. Here's the Washington Post's transcription.
Wyden: So what I wanted to see is if you could give me a yes or no answer to the question, does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
Clapper: No, sir.
Wyden: It does not?
Clapper: Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.
True. Except for the metadata (which one could argue is a "type of data") that the NSA collects on every phone customer (which may run into the hundreds of millions) in the United States (the residents of which might be referred to as "Americans").
Clapper's letter explains.
I have thought long and hard to re-create what went through my mind at the time. In light of Senator Wyden's reference to "dossiers" and faced with the challenge of trying to give an unclassified answer about our intelligence collection activities, many of which are classified, I simply didn't think of Section 215 of the Patriot Act. Instead, my answer addressed collection of the content of communications. I focused in particular on Section 702 of FISA, because we had just been through a year-long campaign to seek reauthorization of this provision and had had many classified discussions about it, including with Senator Wyden.
This is actually not a terrible answer. There are two tools the NSA uses for its data collection: amendments to the Foreign Intelligence Surveillance Act (FISA) which allows the NSA to pull a broad swath of data on non-Americans, and the Patriot Act's Section 215 which allows it to pull those phone records. Clapper answered on the first, not the second.