That's the question a French friend posed last year after the Edward Snowden leaks revealed that the U.S. government was, in fact, violating the law by spying on American citizens.
In March 2013, White House Director of National Intelligence James Clapper testified before the Senate Intelligence Committee. At that hearing, U.S. Senator Ron Wyden (D-Oregon) asked Director Clapper whether the National Security Agency collects "any type of data at all on millions or hundreds of millions of Americans." General Clapper responded, "No, sir. Not wittingly." How the NSA, the CIA, or any intelligence agency, for that matter, could collect such information "unwittingly" is an open issue, but throughout its nearly 80-year history, the CIA has managed to accomplish many things "unwittingly."
Then came Edward Snowden's leaks in June 2013, and it was suddenly crystal-clear that Director Clapper had wittingly misled Congress. The National Security Agency for many years had apparently been gathering information concerning Americans' private behavior that was not always related to direct or even indirect terrorist threats. When Director Clapper was then asked why he'd replied to Senator Wyden as he did, he said, "I responded in what I thought was the most truthful or least untruthful manner, by saying, 'No.'"
Director Clapper apparently was not testifying under oath, so he may not be guilty of lying to Congress. At the same time, he may well have concealed material facts from the oversight committee or made a false statement -- both of which do constitute crimes. President Obama should have fired Clapper on the spot -- not just because he misled the Congress but also because he was witless. Whenever sensitive national-security issues arise during open congressional hearings, the usual approach is to request that the hearing adjourn and resume behind closed doors in order to safeguard legitimate national-security interests. That Director Clapper instead chose to lie is reason enough for him to be replaced. It would not have revealed any sensitive national-security information had he simply replied, "Senator Wyden, as you well know, your question is possibly raising issues that should be addressed more appropriately in an executive, rather than an open, session of the committee."
Now we have another outrage that, so far, has failed to stir the American public to demand change. We learned earlier this year that CIA personnel had hacked their way into the computers of Senate Intelligence Committee staff. The Senate Intelligence Committee, chaired by Senator Diane Feinstein (D-California), a longtime zealous advocate of our intelligence agencies, is charged with overseeing and holding accountable the CIA for its intelligence activities.
In 2007, New York Times journalist Tim Weiner wrote a comprehensive history of the CIA since its creation in 1947. The book is Legacy of Ashes. One of my good friends, who is also a retired CIA covert operations officer, years ago had urged me to read Weiner's book. When I did, I could not put it down: 800 pages of bungled intelligence operations almost from the moment the CIA was born. There was faulty, inadequate, incomplete, and incompetent data gathering and analysis by individuals who were all too often consumed by paranoia. Weiner cited the agency's "cultural myopia" that caused it to "misread the world." (Ask yourself: Why was the Obama White House surprised by the sudden rise of the Islamic State just a few months ago? Where were our intelligence agencies?) Three pages from the end of his narrative, Weiner says that "[t]he American people have lost faith in the CIA's ability to get it right.... Citizens have to rely on their elected representatives to oversee American intelligence."
We desperately need a world-class and effective intelligence capability -- but that capability also has to operate within the constraints of applicable U.S. and international laws and remain subject to rigorous and frequent Congressional oversight. What we cannot tolerate is an intelligence apparatus whose arrogance and disregard of the Constitution result in activities that individuals believe they can pursue without oversight.
The counter-response is that "you just don't understand": The intelligence agencies have kept the homeland relatively safe from harm, and we must trust them to do what is in our best interests. After all, they know more and better than we do.
You know. Keep calm. Carry on. Go shopping.
But is such a Faustian pact consistent with our democratic institutions, our laws, our history, and our values as a people? Hardly.
In Russia, China, and, more recently, Hong Kong, we are seeing this tradeoff at work. Greater economic freedoms are permitted in exchange for looking the other way when it comes to each regime maintaining an ironclad monopoly on political discourse and political freedom. Russian billionaires who criticize Vladimir Putin find their wealth confiscated and end up in prison. Chinese censors make clear just how little independent political activity and criticism of the government they will tolerate. And in Hong Kong, we are seeing the Chinese government renege on the political freedoms promised in 1997 when British rule ended: Hong Kong residents are free to pick their political leaders -- but only from a list of carefully vetted candidates approved in advance by Beijing.
Throughout our history, these types of tradeoffs have been rejected by the American people. Now is not the time for us to accept unconstitutional governmental surveillance and restrictions on our freedom as well as unlawful behavior by government officials in the name of liberty and security. Our intelligence professionals are paid to be paranoid, and that's fine: We want them constantly on guard. But we do not want to look the other way when they break the law and impede the ability of the Congress, on behalf of the American people, to conduct legitimate oversight. Liberals and conservatives should be appalled at what has transpired in the name of freedom and national security.
Much has been written recently about MIT professor Jonathan Gruber, a healthcare expert who advised on the creation of the Affordable Care Act, also known as "Obamacare." In candid remarks caught on video, he stated that Americans were just too stupid to understand the complexity of the healthcare-reform law that the president signed in 2010. We cannot tolerate this type of arrogant condescension in any aspect of American life, be it domestic policy, foreign policy, or national security.
Director Clapper must be held accountable for his misleading Congressional testimony. Those government officials who hacked into the computers of the Senate Intelligence Committee's staff should also be disciplined and possibly prosecuted. To do otherwise is to admit that we are no longer a nation of laws. Trust in government will continue to deteriorate, and our cherished and hard-won freedoms will be even more at risk.
Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990 to 1992 in the George H. W. Bush White House. He was President of the French-American Foundation - United States from 2012 to 2014, and President of the Committee for Economic Development from 1997 to 2012.