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President Obama for his repeated misrepresentations about the bulk collection program (calling the wiretap court "transparent" and saying "all of Congress" knew "exactly how this program works") while in effect acknowledging the public value of the Edward Snowden leaks by ordering the long-overdue declassification of key documents about the NSA's activities, and investigations both by a special panel and by the Privacy and Civil Liberties Oversight Board. The PCLOB directly contradicted the President, pointing out that "when the only means through which legislators can try to understand a prior interpretation of the law is to read a short description of an operational program, prepared by executive branch officials, made available only at certain times and locations, which cannot be discussed with others except in classified briefings conducted by those same executive branch officials, legislators are denied a meaningful opportunity to gauge the legitimacy and implications of the legal interpretation in question. Under such circumstances, it is not a legitimate method of statutory construction to presume that these legislators, when reenacting the statute, intended to adopt a prior interpretation that they had no fair means of evaluating." (p. 101)

Even an author of the Patriot Act, Rep. Jim Sensenbrenner (R-WI), was broadsided by the revelation of the telephone metadata dragnet. After learning of the extent of spying on Americans that his Act unleashed, he wrote that the National Security Agency "ignored restrictions painstakingly crafted by lawmakers and assumed plenary authority never imagined by Congress" by cloaking its actions behind the "thick cloud of secrecy" that even our elected representatives could not breech. Clapper recently conceded to the Daily Beast, "I probably shouldn't say this, but I will. Had we been transparent about this [phone metadata collection] from the outset … we wouldn't have had the problem we had." The NSA's former deputy director, John "Chris" Inglis, said the same when NPR asked him if he thought the metadata dragnet should have been disclosed before Snowden. "In hindsight, yes. In hindsight, yes." Speaking about potential (relatively minimal) changes to the National Security Agency even the president acknowledged, "And all too often new authorities were instituted without adequate public debate," and "Given the unique power of the state, it is not enough for leaders to say: Trust us. We won't abuse the data we collect. For history has too many examples when that trust has been breached." (Exhibit A, of course, is the NSA "watchlist" in the 1960's and 1970's that targeted not only antiwar and civil rights activists, but also journalists and even members of Congress.)

The Archive established the not-so-coveted Rosemary Award in 2005, named after President Nixon's secretary, Rose Mary Woods, who testified she had erased 18-and-a-half minutes of a crucial Watergate tape — stretching, as she showed photographers, to answer the phone with her foot still on the transcription pedal. Bestowed annually to highlight the lowlights of government secrecy, the Rosemary Award has recognized a rogue's gallery of open government scofflaws, including the CIA, the Treasury Department, the Air Force, the FBI, the Federal Chief Information Officers' Council, and the career Rosemary leader — the Justice Department — for the last two years. Rosemary-winner James Clapper has offered several explanations for his untruthful disavowal of the National Security Agency's phone metadata dragnet. After his lie was exposed by the Edward Snowden revelations, Clapper first complained to NBC's Andrea Mitchell that the question about the NSA's surveillance of Americans was unfair, a — in his words — "When are you going to stop beating your wife kind of question." So, he responded "in what I thought was the most truthful, or least untruthful, manner by saying 'no.'"

After continuing criticism for his lie, Clapper wrote a letter to Chairman of the Senate Select Committee on Intelligence Dianne Feinstein, now explaining that he misunderstood Wyden's question and thought it was about the PRISM program (under Section 702 of the Foreign Intelligence Surveillance Act) rather than the telephone metadata collection program (under Section 215 of the Patriot Act). Clapper wrote that his staff "acknowledged the error" to Senator Wyden soon after — yet he chose to reject Wyden's offer to amend his answer. Former NSA senior counsel Joel Brenner blamed Congress for even asking the question, claiming that Wyden "sandbagged" Clapper by the "vicious tactic" of asking "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Meanwhile, Steve Aftergood of the Federation of American Scientists countered that "it is of course wrong for officials to make false statements, as DNI Clapper did," and that in fact the Senate Intelligence Committee "became complicit in public deception" for failing to rebut or correct Clapper's statement, which they knew to be untruthful. Clapper described his unclassified testimony as a game of "stump the chump." But when it came to oversight of the National Security Agency, it appears that senators and representatives were the chumps being stumped. According to Representative Justin Amash (R-Mich), the House Intelligence Committee "decided it wasn't worthwhile to share this information" about telephone metadata surveillance with other members of Congress. Classified briefings open to the whole House were a "farce," Amash contended, often consisting of information found in newspapers and public statutes.

The Emmy and George Polk Award-winning National Security Archive, based at the George Washington University, has carried out thirteen government-wide audits of FOIA performance, filed more than 50,000 Freedom of Information Act requests over the past 28 years, opened historic government secrets ranging from the CIA's "Family Jewels" to documents about the testing of stealth aircraft at Area 51, and won a series of historic lawsuits that saved hundreds of millions of White House e-mails from the Reagan through Obama presidencies, among many other achievements.

Director Clapper joins an undistinguished list of previous Rosemary Award winners: 2012 - the Justice Department (in a repeat performance, for failure to update FOIA regulations for compliance with the law, undermining congressional intent, and hyping its open government statistics) 2011- the Justice Department (for doing more than any other agency to eviscerate President Obama's Day One transparency pledge, through pit-bull whistleblower prosecutions, recycled secrecy arguments in court cases, retrograde FOIA regulations, and mixed FOIA responsiveness) 2010 - the Federal Chief Information Officers' Council (for "lifetime failure" to address the crisis in government e-mail preservation) 2009 - the FBI (for having a record-setting rate of "no records" responses to FOIA requests) 2008 - the Treasury Department (for shredding FOIA requests and delaying responses for decades) 2007 - the Air Force (for disappearing its FOIA requests and having "failed miserably" to meet its FOIA obligations, according to a federal court ruling) 2006 - the Central Intelligence Agency (for the biggest one-year drop-off in responsiveness to FOIA requests yet recorded).   ALSO-RANS The Rosemary Award competition in 2013 was fierce, with a host of government contenders threatening to surpass the Clapper "least untruthful" standard. These secrecy over-achievers included the following FOI delinquents:

Admiral William McRaven, head of the Special Operations Command for the raid that killed Osama Bin Laden, who purged his command's computers and file cabinets of all records on the raid, sent any remaining copies over to CIA where they would be effectively immune from the FOIA, and then masterminded a "no records" response to the Associated Press when the AP reporters filed FOIA requests for raid-related materials and photos. If not for a one-sentence mention in a leaked draft inspector general report — which the IG deleted for the final version — no one would have been the wiser about McRaven's shell game. Subsequently, a FOIA lawsuit by Judicial Watch uncovered the sole remaining e-mail from McRaven ordering the evidence destruction, in apparent violation of federal records laws, a felony for which the Admiral seems to have paid no price. Department of Defense classification reviewers who censored from a 1962 document on the Cuban Missile Crisis direct quotes from public statements by Soviet Premier Nikita Khrushchev. The quotes referred to the U.S. Jupiter missiles in Turkey that would ultimately (and secretly) be pulled out in exchange for Soviet withdrawal of its missiles in Cuba. The denials even occurred after an appeal by the National Security Archive, which provided as supporting material the text of the Khrushchev statements and multiple other officially declassified documents (and photographs!) describing the Jupiters in Turkey. Such absurd classification decisions call into question all of the standards used by the Pentagon and the National Declassification Center to review historical documents.

Admiral William McRaven memo from May 13, 2011, ordering the destruction of evidence relating to the Osama bin Laden raid. (From Judicial Watch)

The Department of Justice Office of Information Policy, which continues to misrepresent to Congress the government's FOIA performance, while enabling dramatic increases in the number of times government agencies invoke the purely discretionary "deliberative process" exemption. Five years after President Obama declared a "presumption of openness" for FOIA requests, Justice lawyers still cannot show a single case of FOIA litigation in which the purported new standards (including orders from their own boss, Attorney General Eric Holder) have caused the Department to change its position in favor of disclosure.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Even the cleverest lawyers cannot square with the Fourth Amendment many of the NSA activities that Clapper and Feinstein have defended, winked at, or lied about. Only you can get rid of James Clapper. We suspect that a certain awkwardness — and perhaps also a misguided sense of loyalty to a colleague — militate against your senior staff giving you an unvarnished critique of how badly you have been served by Clapper. And so we decided to give you a candid reminder from us former intelligence and national security officials with a total of hundreds of years of experience, much of it at senior levels, in the hope you will find it helpful. Statements by DNI Clapper re Eavesdropping on Americans

Mr. President, are you not also troubled by those misleading statements? We strongly believe you must fire Jim Clapper for his lies to the Congress and the American people and that you must appoint someone who will tell the truth. * * * For the Steering Group, Veteran Intelligence Professionals for Sanity

"Part of our obligation is to ensure that policymakers are provided with the fullest possible picture of any matters that might affect national security," Clapper added. Clapper's statement comes amid extraordinary strains between the spy world and Trump, who takes office next week. The president-elect has been resistant to U.S. intelligence assessments that Russia intervened in the election, although during a press conference Wednesday morning Trump admitted that Moscow likely did do some hacking. Steven Hall, a former head of Russian operations at the CIA, said Clapper’s statement didn’t appear to be an all-out apology, but that it was possible the spy chief wants to try to patch up the tensions between Trump and the intelligence world before he himself steps down in just a few days. “He just might very well be like, wow, this really has kind of gotten out of control,” said Hall, who described Clapper as an “old-school, principled” kind of guy. “This might be his parting attempt to say, look at the very least after more than a 50-year career in intelligence, I don’t want this to be what I’m remembered by.”

Rogers: Sir, I believe that one of my challenges as the Director, if confirmed, is how do we engage the American people — and by extension their representatives — in a dialogue in which they have a level of comfort as to what we are doing and why. That is no insignificant challenge for those of us with an intelligence background, to be honest. But I believe that one of the takeaways from the situation over the last few months has been as an intelligence professional, as a senior intelligence leader, I have to be capable of communicating in a way that we are doing and why to the greatest extent possible. That perhaps the compromise is, if it comes to the how we do things, and the specifics, those are perhaps best addressed in classified sessions, but that one of my challenges is I have to be able to speak in broad terms in a way that most people can understand. And I look forward to that challenge. Udall: I’m going to continue asking that question and I look forward to working with you to rebuild the confidence. [my emphasis]

I assume that now that Clapper has given him the okay to discuss unclassified topics with Congress, Rogers will now provide a forthright answer, all the while claiming he was ignorant about the answer at the time (fine! then make me DIRNSA because I know more about it!). But Rogers’ response went far beyond such an answer. He refused — not just in the hearing but even after it — to commit to answering a question with a completely unclassified answer. And as I pointed out in this post, his written answers were even more obfuscatory. I don’t get a vote. But I think this should disqualify him as a nominee.

Update: Here’s the exchange in Rogers’ questions for the record on back door searches. What is your understanding of the legal rationale for NSA to search through data acquired under section 702 using U.S. Persons identifiers without probable cause? Information acquired by NSA under Section 702 of FI SA must be handled in strict accordance with minimization procedures adopted by the Attorney General and approved by the Foreign Intelligence Surveillance Court. As required by the statute and certifications approving Section 702 acquisitions, such activities must be limite d to targeting non-U.S. persons reasonably believed to be located outside the United States . NSA’s Court-approved procedures only permit searches of this lawfully acquired data using U.S. person identifiers for valid foreign intelligence purposes and under the oversight of the Department of Justice and Office of Director of National Intelligence.

Former National Intelligence Officer Paul Pillar, who has participated in drafting national intelligence estimates, said the intelligence assessment summary released by the White House “is evidently an administration document, and the working master copy may have been in someone’s computer at the White House or National Security Council.” Pillar suggested that senior intelligence officials might have signed off on the administration paper, but that the White House may have drafted its own paper to “avoid attention to analytic differences within the intelligence community.” Comparable intelligence community assessments in the past, he observed – including the 2002 Iraq WMD estimate – include indications of differences in assessment among elements of the community. An unnamed “senior administration official” briefing the news media on the intelligence paper on Aug. 30 said that the paper was “fully vetted within the intelligence community,” and that, ”All members of the intelligence community participated in its development.”

But that statement fell far short of asserting that all the elements of the intelligence community had approved the paper in question, or even that it had gone through anything resembling consultations between the primary drafters and other analysts, and opportunities for agencies to register dissent that typically accompany intelligence community assessments. The same “senior administration official” indicated that DNI Clapper had “approved” submissions from various agencies for what the official called “the process”. The anonymous speaker did not explain further to journalists what that process preceding the issuance of the White House paper had involved. However, an Associated Press story on Aug. 29 referred to “a report by the Office of the Director of National Intelligence outlining the evidence against Syria”, citing two intelligence officials and two other administration officials as sources. That article suggests that the administration had originally planned for the report on intelligence to be issued by Clapper rather than the White House, apparently after reaching agreement with the White House on the contents of the paper. But Clapper’s name was not on the final document issued by the White House, and the document is nowhere to be found on the ODNI website. All previous intelligence community assessments were posted on that site.

The issuance of the document by the White House rather than by Clapper, as had been apparently planned, points to a refusal by Clapper to put his name on the document as revised by the White House. Clapper’s refusal to endorse it – presumably because it was too obviously an exercise in “cherry picking” intelligence to support a decision for war – would explain why the document had to be issued by the White House. Efforts by IPS to get a comment from the Office of the Director of National Intelligence suggest strongly that Clapper is embarrassed by the way the Obama White House misrepresented the Aug. 30 document.

An e-mail query by IPS to the media relations staff of ODNI requesting clarification of the status of the Aug. 30 document in relation to the intelligence community was never answered. In follow-up phone calls, ODNI personnel said someone would respond to the query. After failing to respond for two days, despite promising that someone would call back, however, ODNI’s media relations office apparently decided to refuse any further contact with IPS on the subject. A clear indication that the White House, rather than Clapper, had the final say on the content of the document is that it includes a statement that a “preliminary U.S. government assessment determined that 1,429 people were killed in the chemical weapons attack, including at least 426 children.” That figure, for which no source was indicated, was several times larger than the estimates given by British and French intelligence. The document issued by the White House cites intelligence that is either obviously ambiguous at best or is of doubtful authenticity, or both, as firm evidence that the Syrian government carried out a chemical weapons attack. It claims that Syrian chemical weapons specialists were preparing for such an attack merely on the basis of signals intelligence indicating the presence of one or more individuals in a particular location. The same intelligence had been regarded prior to Aug. 21 as indicating nothing out of the ordinary, as was reported by CBS news Aug. 23.

he paper also cites a purported intercept by U.S intelligence of conversations between Syrian officials in which a “senior official” supposedly “confirmed” that the government had carried out the chemical weapons attack. But the evidence appears to indicate that the alleged intercept was actually passed on to the United States by Israeli intelligence. U.S. intelligence officials have long been doubtful about intelligence from Israeli sources that is clearly in line with Israeli interests. Opponents of the proposed U.S. strike against Syria could argue that the Obama administration’s presentation of the intelligence supporting war is far more politicised than the flawed 2002 Iraq WMD estimate that the George W. Bush administration cited as part of the justification for the invasion of Iraq.

Director of National Intelligence James Clapper, for instance, responded to the Petrobras revelations by claiming: “It is not a secret that the Intelligence Community collects information about economic and financial matters…. What we do not do, as we have said many times, is use our foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of—or give intelligence we collect to—U.S. companies to enhance their international competitiveness or increase their bottom line.” But a secret 2009 report issued by Clapper’s own office explicitly contemplates doing exactly that. The document, the 2009 Quadrennial Intelligence Community Review—provided by NSA whistleblower Edward Snowden—is a fascinating window into the mindset of America’s spies as they identify future threats to the U.S. and lay out the actions the U.S. intelligence community should take in response. It anticipates a series of potential scenarios the U.S. may face in 2025, from a “China/Russia/India/Iran centered bloc [that] challenges U.S. supremacy” to a world in which “identity-based groups supplant nation-states,” and games out how the U.S. intelligence community should operate in those alternative futures—the idea being to assess “the most challenging issues [the U.S.] could face beyond the standard planning cycle.”

he report describes itself as “an essential long-term piece, looking out between 10 and 20 years” designed to enable ”the IC [to] best posture itself to meet the range of challenges it may face.” Whatever else is true, one thing is unmistakable: the report blithely acknowledges that stealing secrets to help American corporations secure competitive advantage is an acceptable future role for U.S. intelligence agencies. In May, the U.S. Justice Department indicted five Chinese government employees on charges that they spied on U.S. companies. At the time, Attorney General Eric Holder said the spying took place “for no reason other than to advantage state-owned companies and other interests in China,” and “this is a tactic that the U.S. government categorically denounces.” But the following day, The New York Times detailed numerous episodes of American economic spying that seemed quite similar. Harvard Law School professor and former Bush Justice Department official Jack Goldsmith wrote that the accusations in the indictment sound “a lot like the kind of cyber-snooping on firms that the United States does.” But U.S. officials continued to insist that using surveillance capabilities to bestow economic advantage for the benefit of a country’s corporations is wrong, immoral, and illegal.

Yet this 2009 report advocates doing exactly that in the event that ”that the technological capacity of foreign multinational corporations outstrip[s] that of U.S. corporations.” Using covert cyber operations to pilfer “proprietary information” and then determining how it ”would be useful to U.S. industry” is precisely what the U.S. government has been vehemently insisting it does not do, even though for years it has officially prepared to do precisely that.

Despite nearly 15 years of U.S. counterterrorism operations after the Sept. 11 attacks, Clapper said, “there are now more Sunni violent extremist groups, members and safe havens than at any time in history.” At one point, Clapper described his grim presentation, only half jokingly, as a “litany of doom.”

Jameel Jaffer, the American Civil Liberties Union's deputy legal director, said in a statement today that: After Congress enacted the FISA Amendments Act in 2008, we worried that the NSA would use the new authority to conduct warrantless surveillance of Americans' telephone calls and emails. These documents confirm many of our worst fears. The "targeting" procedures indicate that the NSA is engaged in broad surveillance of Americans' international communications. The "minimization" procedures that supposedly protect Americans' constitutional rights turn out to be far weaker than we imagined they could be. For example, the NSA claims the authority to collect and disseminate attorney-client communications -- and even, in some circumstances, to turn them over to Justice Department prosecutors. The government also claims the authority to retain Americans' purely domestic communications in certain situations.

The documents suggest there are some significant loopholes in domestic surveillance: if an NSA analyst reviews an intercepted communication and finds "evidence of a crime that has been, is being, or is about to be committed," it can be forwarded to the FBI or other federal law enforcement agencies. Another loophole is "a serious harm to life or property" -- which could sweep in intellectual property -- and "enciphered" data. Communications that contain "enciphered" data, which would likely include PGP but also could mean encrypted Web connections using SSL, may be kept indefinitely. Earlier reports have indicated that the NSA has the ability to record nearly all domestic and international phone calls -- in case an analyst needed to access the recordings in the future. A Wired magazine article last year disclosed that the NSA has established "listening posts" that allow the agency to collect and sift through billions of phone calls through a massive new data center in Utah, "whether they originate within the country or overseas." That includes not just metadata, but also the contents of the communications.

Section 702 of the FAA says surveillance may be authorized by the attorney general and director of national intelligence without prior approval by the secret Foreign Intelligence Surveillance Court, as long as minimization requirements and general procedures blessed by the court are followed.

The official results of Obama’s call for surveillance reform also appear to have failed to address encryption. The FBI director, James Comey, and other officials have been highly critical of the use of encryption by tech companies such as Apple to protect their users’ information. Comey has argued that stronger encryption, baked in to some technology after the Snowden revelations, will aid criminals and terrorists and shut out law enforcement.

Other measures outlined in the new report include steps to clarify the protection given to whistleblowers if they follow internal rules and a requirement that “any significant compliance incident involving personal information, regardless of the person’s nationality” be reported to Clapper.

The intelligence report itself acknowledges that further reforms called for by the president, such as ending the collection of bulk data by the government, have not been implemented, possibly due to stalled legislative efforts in Congress.