SEN. RON WYDEN (D-Ore.): “This is for you, Director Clapper, again on the surveillance front. And I hope we can do this in just a yes or no answer because I know Senator Feinstein wants to move on. Last summer, the NSA director was at a conference, and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘The story that we have millions or hundreds of millions of dossiers on people is completely false.’

“The reason I’m asking the question is, having served on the committee now for a dozen years, I don’t really know what a dossier is in this context. 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?”

Director of National Intelligence JAMES CLAPPER: “No, sir.”

SEN. WYDEN: “It does not?”

DIR. CLAPPER: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”

SEN. WYDEN: “Thank you. I’ll have additional questions to give you in writing on that point, but I thank you for the answer.”

— exchange during a hearing of the Senate Intelligence Committee, March 12, 2013

This exchange during a congressional hearing has suddenly achieved new prominence in the wake of the revelations of National Security Agency programs that include the collection of data from U.S. phone call records and the NSA’s surveillance of online communications to and from foreign targets.

Through the top-secret program known as PRISM, authorized by federal judges working under the Foreign Intelligence Surveillance Act (FISA), the NSA apparently can gain access to the servers of nine Internet companies for a wide range of digital data.

On Tuesday, Sen. Ron Wyden (D-Ore.) issued a tough statement, saying Director of National Intelligence James Clapper did not give a “straight answer” to his question. Wyden added that the day before the hearing, he gave Clapper’s office advance notice that he would be asking this particular question and that “after the hearing was over, my staff and I gave his office a chance to amend his answer.”

Wyden’s staff declined to release the correspondence, citing a policy of wanting to keep communications with administration officials private. But Wyden’s statement strongly suggests Clapper had been deliberately misleading when he appeared before the Senate panel.

The Facts

Clapper has long indicated his discomfort about addressing confidential matters in public, particularly in response to questions from lawmakers. At the beginning of the hearing involving the exchange with Wyden, Clapper made the following observation:

“I have serious reservations about conducting open hearings on the worldwide threat, especially the question-and-answer sessions. While I believe it’s important to keep the American public informed about the threats our nation faces, I believe that can be done through unclassified opening statements and statements for the record. As you also know, we’re ready to answer any and all of your questions in closed session. But an open hearing on intelligence matters is something of a contradiction in terms.”

But Wyden’s statement indicated that the question should not have been a surprise and that Clapper should have been prepared for it.

Shawn Turner, a spokesman for Clapper, did not respond to two days of inquiries. But in weekend interviews, Clapper indicated that he skated close to the line.

In an interview with NBC’s Andrea Mitchell, he said that “I responded in what I thought was the most truthful, or least untruthful manner, by saying no,” though he also called his answer “too cute by half.” He indicated that his response to Wyden turned on a definition of “collect:” “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 him.”

One wonders why Clapper or his staff did not seek a clarification, given the apparent heads up by Wyden. Clapper apparently thinks the NSA “collects” only on specific targets — what he called, in the interview with NBC, “taking the book off the shelf and opening it up and reading it.” But that is a rather slippery answer.

In an interview with the National Journal, Clapper said: “What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that.” But neither Clapper nor Wyden referred to e-mails during the exchange. Wyden in fact referred to “any type of data at all” — which presumably would also cover the phone records in the other classified program that has been the subject of media reports.

It is important to remember that broad hints of these programs have already been in the media. In 2006, USA Today ran a major story titled “NSA has massive database of Americans’ phone calls.” The newspaper said that the NSA “has been secretly collecting the phone call records of tens of millions of Americans” and that “the NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime.”

Our colleague Bob Woodward, in his 2010 book titled “Obama’s Wars,” reported on three NSA code-word operations, SHARKFINN, RT10 AND RTRG (Real Time, Regional Gateway) that were “designed to speed the acquisition, storage, dissemination and availability of intercepted communications, including cell phone calls and e-mails.” RT10 made it 10 billion times faster, and RTRG “meant there was a way to capture all the data, store it, make it instantly available to intelligence analysts and operators, allowing the U.S. to react quickly in response to the enemy.”

Woodward’s disclosures about this “breakthrough eavesdropping capability” are not hard to find, as they appear on page 7.

And Wired magazine, in an article in March by NSA expert James Bamford, reported on the NSA’s new center in Utah: “Stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails — parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter.’ ”

President Obama “certainly believes that Director Clapper has been straight and direct in the answers that he’s given and has actively engaged in an effort to provide more information about the programs that have been revealed through the leak of classified information,” spokesman Jay Carney said Tuesday.

The Pinocchio Test

Given the information already in the public domain, including about e-mails, it is unclear what Clapper thought he was protecting with his “too cute by half” and “least untruthful” answer. Such important questions — and answers — should not be left to a semantic debate over the meaning of “collection.”

Clapper in recent days has tried to emphasize how forthright the NSA has been in explaining these programs. But he might have saved himself some trouble if he had been more forthright in the first place.

Given that so much is still unknown about these programs, we will start this rating at Three Pinocchios and possibly adjust if more information becomes available.

Update, July 3: In a letter to Congress, Clapper acknowledged that his comment was “clearly erroneous.” But he also wrote that his staff acknowledged the error to Wyden’s staff “soon after the hearing.” A Wyden spokesman confirms that, saying that Clapper’s staff declined an opportunity to amend the record publicly. Given that Clapper very quickly--if privately--conceded that he had made an error, we see no reason to increase the number of Pinocchios.

Three Pinocchios

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