Torture Whistleblower: I got 30 months in prison. Why does Leon Panetta get a pass?

[struggle4progress]

129. This is another example of Washington baseball, and once again you've been distracted

by events in the outfield when you should have been paying attention to what happens on the diamond

The March 12th hearing had two parts, an open public part, followed by a closed session:

... The Committee meets today in open session, as we have done since 1994, to hear an unclassified description from our intelligence leaders of the threats that face our nation. As Members know, we will immediately follow this session with a closed session, and I will ask that Members refrain from asking questions here that require classified answers ...

This relates to inherent constitutional conflicts between the Executive and Congress

The current arrangement recognizes that the Executive has legitimate reasons to restrict circulation of certain classified information and that Congress has legitimate needs for some of that information for its oversight responsibilities. Therefore the Executive releases some information to intelligence committees, with the understanding that those committees will not make the information public. This understanding is not enforceable by prosecution, since the debate clause of the Constitution (Article I, Section 6) immunizes representatives and senators for statements made upon the floor: for any Speech or Debate in either House, they shall not be questioned in any other Place. But a violation of the understanding are enforceable politically, since the Executive can always refuse to release certain information on the grounds that Congress cannot be trusted to safeguard the information -- so failure by a member to honor confidentiality understandings are very likely to result in removal of the member from the intelligence committee and may also produce other sequelae (such as censure by the chamber) intended to reassure the Executive that Congress can be trusted to safeguard the information

A member of such a committee, like Wyden, thus has access to information which the member has promised not to disclose, which the member actually could disclose without any legal consequence, but which the member probably cannot disclose without significant political consequence. The problem of calling public attention to an issue, when the member believes the public ought to be aware of the issue but cannot conveniently release related information to raise public awareness of the issue, therefore becomes a matter of careful strategic game-playing

In this case, Wyden seems to have been quite aware of the extensive metadata collection program at the time he asked the question during the public part of the committtee hearing. By asking the question, he deliberately put Clapper on the spot, because Clapper (unlike members of Congress) has no automatic immunity for statements made to Congress but is nevertheless subject to other legal obligations to safeguard classified information. Our natural guess should be that Wyden hoped Clapper would offer No comment, or a similar statement that could be converted into a public controversy to call attention to the activities that concerned Wyden but that Wyden could not directly bring to public attention. Clapper, however, did not respond in the desired manner:

... "I realized later Sen. Wyden was asking about ... metadata collection, rather than content collection," Clapper wrote. "Thus, my response was clearly erroneous, for which I apologize." Feinstein said in a statement Tuesday: "I have received Director Clapper's letter and believe it speaks for itself. I have no further comment at this time." Wyden spokesman Tom Caiazza said Tuesday that when Wyden staffers contacted Clapper's office shortly after the hearing, his staffers "acknowledged that the statement was inaccurate but refused to correct the public record when given the opportunity" ...
Clapper apologizes for 'erroneous' answer on NSA
By KIMBERLY DOZIER
Jul. 2, 2013 6:33 PM EDT

Thus, in actual fact, Clapper does not seem deliberately to have mislead the intelligence committee, though his testimony at the public part of the hearing must certainly have misled the public. And while it can sometimes be criminal to lie under oath to Congress, on a matter material to a legitimate Congressional inquiry, no consequence can follow, absent a complaint from Congress itself

We should regard Wyden's March 2013 gambit as a deliberate attempt to call attention to the metadata program, but unfortunately it failed at the time. The later resurrection of Clapper's public testimony, by Wyden and his staff in June and July, merely represents a renewed attempt to signal political opposition to the metadata collection program

But the issue of Clapper's testimony a year ago now lies entirely in the outfield;it is a distraction from the real issue on the diamond --- the metadata collection program. That program cannot be reduced or ended, until we engineer considerable Congressional opposition to it. Clapper's resignation would not end the program, because Clapper himself is not the source of the program but merely occupies an institutional slot: a successful drive for Clapper's resignation would leave the program untouched, and that effort would, in fact, exhaust all the political energy that should have been directed against the metadata program itself