# How are NSA members supposed to answer questions under oath about secret programs? **URL:** \ **Category:** Factual Questions\ **Created:** [June 12, 2013, 2:41am UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781 "2013-06-12T02:41:18Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [June 12, 2013, 2:41am UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781/1 "2013-06-12T02:41:18Z")
Here’s a [video of Senator Wyden (D-Ore) asking NSA director James Clapper about NSA data collection](http://www.youtube.com/watch?feature=player_embedded&v=QwiUVUJmGjs). The pertinent line of questions starts at 6:00. Here’s my transcription of the most pertinent part: > [@](#): > > Sen. Wyden: _Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?_ > > Director Clapper: _No, sir._ > > Sen. Wyden: _It does not._ > > Director Clapper: _Not wittingly. There are cases where they could inadvertantly perhaps collect, but not wittingly._ Sen. Wyden claims that [he gave Director Clapper this question a day in advance of asking him](http://www.wyden.senate.gov/news/press-releases/wyden-statement-responding-to-director-clappers-statements-about-collection-on-americans). Here is a [video of Rep. Hank Johnson (D-Ga) asking NSA director Keith Alexander about the NSA’s surveillance capabilities and practices](http://www.youtube.com/watch?v=oYNXVgYhPOc&feature=player_embedded). In the first part of the video, Alexander denies that the NSA has the ability to conduct searches through all Americans’ emails. Here’s my transcription of the most relevant part: > [@](#): > > Rep. Johnson: _Does the NSA routinely intercept Americans’ emails?_ > > Dir. Alexander: _No._ > > Rep. Johnson: _Does the NSA intercept Americans’ cell phone conversations?_ > > Dir. Alexander: _No._ > > Rep. Johnson: _Google searches?_ > > Dir. Alexander: _No._ > > Rep. Johnson: _Text messages?_ > > Dir. Alexander: _No._ > > Rep. Johnson: _[Amazon.com](http://Amazon.com) orders?_ > > Dir. Alexander: _No._ > > Rep. Johnson: _Bank records?_ > > Dir. Alexander: _No._ > > Rep. Johnson: _What judicial consent is required for NSA to intercept communications and information involving American citizens?_ > > Dir. Alexander: _Within the United States, that would be the FBI lead. If it were a foreign actor in the United States, the FBI would still have to lead. It could work that with NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order, and the court would have to authorize it. We’re not authorized to do it, nor do we do it._ My question does not have to do with whether these searches are a good or bad thing. My question does not have to do with whether these NSA directors committed perjury. (For the record, they claim that they did not commit perjury.) My question is what NSA directors are supposed to say when asked questions under oath about secret programs. I assume it would be against the law to answer the questions, because that would disclose top secret information to people not authorized to receive that information. I also assume it would be against the law to lie under oath. Are they supposed to say, “I can’t answer that question”? And if so, wouldn’t that amount to a disclosure that these programs exist? Does the intelligence community have some sort of answer that people are supposed to give under these circumstances? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [June 12, 2013, 3:14am UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781/2 "2013-06-12T03:14:45Z")
> [@Age\_Quod\_Agis](#): > > My question is what NSA directors are supposed to say when asked questions under oath about secret programs. > > I assume it would be against the law to answer the questions, because that would disclose top secret information to people not authorized to receive that information. It’s not against the law to answer questions about secret programs when asked at a Congressional hearing. Congress writes the laws under which things are made secret, and it provides the money to fund secret programs. They have the right to oversee such things. It is _very_ against the law to lie to Congress. If answering a question would reveal secret information, the correct thing to do is to inform the Congressperson (preferably beforehand) that the question is better asked in a closed session. > [@](#): > > I also assume it would be against the law to lie under oath. Most definitely. That’s perjury. > [@](#): > > Are they supposed to say, “I can’t answer that question”? And if so, wouldn’t that amount to a disclosure that these programs exist? Ideally, the committees are supposed to be smart enough to know what not to ask in an open session so as to avoid jeopardizing national secrets. Also ideally, executive bureaucrats should know not to lie under oath. > [@](#): > > Does the intelligence community have some sort of answer that people are supposed to give under these circumstances? Yes, they have to answer to Congressional oversight committees. Most of this work is done in the form of closed hearings where the executive staff can testify under oath about classified programs. ---
**Author:** ![DataX](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DataX](https://boards.straightdope.com/u/DataX)\ **Post date:** [June 12, 2013, 3:20am UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781/3 "2013-06-12T03:20:45Z")
I have heard people refuse to answer as it would give away classified info. Nothing they said seems like perjury to me if you believe what they have said subsequently and what we know except maybe the first one. We already knew the NSA had fiber optic wiretaps on Internet connectivity - and was therefore processing data that encompassed millions of Americans. That seems like collecting to me, but you could argue he’s claiming they aren’t interested in the US only ones. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [June 12, 2013, 3:24am UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781/4 "2013-06-12T03:24:07Z")
I assume that was staged. Clapper can correct his testimony in private and it’s not perjury. It’s just a game. ---
**Author:** ![Ranger\_Jeff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ranger_jeff/32/2065_2.png) [@Ranger\_Jeff](https://boards.straightdope.com/u/Ranger_Jeff)\ **Post date:** [June 12, 2013, 4:34am UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781/5 "2013-06-12T04:34:35Z")
What a choice: A) Contempt of Congress or 2) Violating a National Security Non-Disclosure Agreement. I suspect A would get me a fine and maybe some time in Hotel Greybar. 2 would land me in Florence ADMAX in a 10’ x 6’ cell for 23/7/365 (366 on leap years) for many years. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [June 12, 2013, 12:06pm UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781/6 "2013-06-12T12:06:34Z")
While not commenting on any of the specific statements made, in general there are plenty of questions that can be asked of Executive Branch officials that can’t be answered in public, or sometimes even behind closed doors. Two examples: first, executive branch officials don’t really have to answer questions about internal deliberations within the White House due to executive privilege. If a congressman asks what the Vice President’s suggestions were to the President on some issue, no official would answer that question. Second, laws such as the Privacy Act prohibit the release of personal information of individuals. If a senator wants to know how much Bill Gates paid in taxes last year, the Executive Branch could not divulge that information, even in closed session. So what does this have to do with the question of how officials may answer questions about classified information? It means that witnesses generally know how to dodge questions that they are not allowed to answer. So, if a congressman asks in open session, “Director Muller, is it true that you have a mole inside the Gambino crime family that is currently giving you information about their illegal activities?” If the FBI Director wants to answer that question with what he believes to be a truthful answer, though maybe not fully forthcoming, he could do that. If he doesn’t want to answer the question, he could say something like, “I cannot comment on sensitive law enforcement matters, but I can assure you that the FBI is acting to uphold its duties and its public trust in a responsible manner.” That answer, in and of itself, can’t really be said to constitute a yes or no answer to that question. And just as a general point, it’s pretty hard to get nailed for perjury. The law requires that a witness knowingly and willfully made false statements with an intent to mislead, or something like that. That is quite a hard thing to prove, because it must be shown that the witness actually knew what the truth was and decided to say the opposite, while any ambiguities in the question or answer could be interpreted as being evidence of a lack of intent to mislead. Roger Clemens told a congressional hearing that he didn’t use steroids, while the evidence seems overwhelming that he did. However, Clemens was acquitted of charges of perjury and obstruction. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [June 13, 2013, 1:05am UTC](https://boards.straightdope.com/t/how-are-nsa-members-supposed-to-answer-questions-under-oath-about-secret-programs/660781/7 "2013-06-13T01:05:20Z")
Let me point out that as a practical matter, it is almost impossible for an Executive Branch member to be prosecuted for criminal contempt of Congress. Congress can pass a resolution of contempt, which then gets passed on to the Justice Department, an arm of the Executive Branch. [The Justice Department will almost surely decline to prosecute.](http://www.washingtonpost.com/wp-dyn/content/article/2008/03/01/AR2008030100528_pf.html) Congress can bring a civil lawsuit trying to get a reluctant witness to testify or produce documents. Presumably, the witness could face contempt of court penalties if they failed to obey a court order.