Senate Intelligence CommitteeSenate Intelligence CommitteeYesterday seven Republican congressmen asked Attorney General Eric Holder to investigate whether Director of National Intelligence James Clapper lied when he told the Senate Intelligence Committee last March that the National Security Agency does not "collect any type of data at all on millions or hundreds of millions of Americans." I can save Holder some time: Clapper lied. Not only that, but ever since the lie was revealed by former NSA contractor Edward Snowden's leaks last June, Clapper has been lying about the lie. The latest example:

Shawn Turner, a spokesman for Clapper, said the intelligence director mistakenly understood [Sen. Ron] Wyden's question to be referring to the contents of communications, instead of "metadata" such as phone numbers, call times and call durations. 

"DNI Clapper has been testifying before members of Congress for more than two decades and he enjoys a well-earned reputation as a doggedly honest and honorable public servant," Turner said. "He apologized for the confusion caused by his response and is focused on working with the intelligence committees to increase transparency while protecting critical intelligence sources and methods."

Evidently neither Clapper nor Turner realizes that Senate committees record their public hearings. Either that, or they assume everyone will be too lazy to bother checking exactly what Clapper said and in what context. Because if you do watch the video or read the transcript, you will see there was no mention of email or telephone calls during the hearing, so it is highly implausible that Clapper believed Wyden was asking him about the "the contents of communications." Furthermore, Wyden made it abundantly clear that his concerns went beyond the question of whether the NSA listens to Americans' phone calls or reads their email:

Wyden: 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 [intelligence] 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?

Clapper: No, sir.

Wyden: It does not.

Clapper: Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.

Not only was Wyden's question unambiguous, but he told Clapper ahead of tiime that he planned to ask it. Given this context, the story Clapper is still trying to sell—that he gave a "clearly erroneous" answer because he mistakenly thought Wyden was asking only about the content of communications—does not pass the laugh test. Furthermore, it is inconsistent with another explanation Clapper has offered: that he gave the "least untruthful" answer he could to a question dealing with classified matters. As the congressmen note in their letter to Holder, Clapper could simply have declined to answer the question in public rather than tell a bald-faced lie. In any case, the "noble lie" excuse plainly contradicts the "honest mistake" excuse.

The letter to Holder—which was signed by Reps.  James Sensenbrenner Jr. (Wis.), Darrell Issa (Calif.), Trent Franks (Ariz.), Blake Farenthold (Texas), Trey Gowdy (S.C.), Raúl Labrador (Idaho) and Ted Poe (Texas)—notes that it's a federal crime, punishable by up to five years in prison, to "knowingly and willfully" make any "materially false" statement in  the course of any "investigation or review" conducted by a congressional committee. The congressmen note that Scooter Libby and Martha Stewart were both convicted under the same statute. They add:

The law is clear. [Clapper] was asked a question and he was obligated to answer truthfully. He could have declined to answer. He could have offered to answer in a classified setting. He could have corrected himself immediately following the hearing. He did none of these things despite advance warning that the question was coming.

It seems unlikely that Holder will decide to treat Clapper like Scooter Libby or Martha Stewart. But Clapper, having told a whopper in the name of national security, should at least have the decency to stop lying about it.