In March, for instance, Wyden asked Clapper about domestic intelligence-gathering.
“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” he asked.
Wyden knew the answer. Clapper knew the answer. The answer was yes.
“No, sir,” Clapper said.
This tactic has been criticized by people close to the intelligence community. Joel F. Brenner, a former NSA senior counsel, called it a “low dishonorable act” in a recent post at the blog Lawfare. Brenner objected to Wyden “putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information.”
But Wyden counts it a success and a necessary move (he also says he warned Clapper about the question beforehand). He said he wanted to establish a public marker to show that the administration had been spreading untruths about the reach of domestic spying.
“You can’t do vigorous oversight if the leaders of the intelligence community are misleading the American people, and Congress, in public hearings,” Wyden said.
After Snowden’s leaks, attention focused on Clapper’s false statement. The intelligence chief later said he had struggled with his duty not to disclose classified programs in the hearing. Clapper said he had responded in the “least untruthful manner.” He also apologized to Wyden. The Obama administration has said that it “welcomes” a debate on privacy and national security.
Now, Wyden says he will press — along with allies such as Sen. Mark Udall (D-Colo.) — for legislation to end the bulk collection of telephone records and to declassify some decisions by the secret court. Amash says he will try similar tactics in the House.
There are powerful opponents in both parties. But both men said they feel momentum on their side.
“We’re starting to put some points on the board,” Wyden said, noting the close vote on Amash’s amendment. “There is no question in my mind that our side is going to grow, and we’re going to stay at it until this is fixed.”
Ed O’Keefe and Peter Wallsten contributed to this report.