2

During Congressional testimony today (03/20/17), Adm. Michael S. Rogers was asked (among other things) if US citizens were required to report all contacts with foreign nationals and if failure to report such a contact could result in a counter-intelligence investigation. That seems like an obvious question, but he answered that he didn't know because he was not familiar with the law on that question.

If this were a question about US officials and foreign nationals or US officers and foreign nationals or US citizens and agents of foreign governments, then the lack of familiarity with the law would seem like a reasonable justification for not answering. But the question was about US citizens interactions with foreign nationals. That is such an incredibly broad category. It encompasses any interaction of any US citizen with any foreign national. Your cab driver had a strong accent? Yep, that's within the category of that question. So is every interaction with every customer support call if it's manned in India. Or any interaction with any bank teller, flower or food delivery person who seems to have an accent. They are all possibly foreign nationals and all fall within the category of such a question.

How could he answer that he "didn't know"? How could the answer to that specific question be anything but a resounding "no, obviously not"? Would it even be legal to impose such a requirement on all US citizens? Is there any country in the world other than North Korea which has such a requirement on its citizens?

Having said that, he could have been trying to answer the broader question (which did entail asking about whether interactions between US officials and foreign agents have to be reported). But he answered 2-3 questions asked together with 1 answer. It seems like the answers should have been separate because the answer to this one specific question (out of all the ones asked) should have been very different from all the others.

I guess my question is whether he had to err on being as elucidating as possible when testifying before Congress and providing as much information as he was able to? Or should he have erred on the side off not making statements if there was any chance of them being too broad? Is not answering questions which are very narrow-tailored, by claiming that they are too general, tantamount to refusing to answer the questions?

Did he, as the head of the NSA, not just imply that it may be possible to legally require all US citizens to report to the government any and all interactions with foreign nationals?

I am not looking for snide shots of the "nsa is wiretapping all phone calls, anyway, so why do you care"-kind. I am trying to understand if there is really any legal possibility of US going down this path of xenophobia because of Russia. I don't mean culturally. I mean legally. Is there anything to legally preclude it from happening? And wouldn't the NSA director have to know something like this?

1

I guess my question is whether he had to err on being as elucidating as possible when testifying before Congress and providing as much information as he was able to?

Or should he have erred on the side off not making statements if there was any chance of them being too broad?

Is not answering questions which are very narrow-tailored, by claiming that they are too general, tantamount to refusing to answer the questions?

Did he, as the head of the NSA, not just imply that it may be possible to legally require all US citizens to report to the government any and all interactions with foreign nationals? . . . And wouldn't the NSA director have to know something like this?

I think that in a situation like this one, you are reading too much into a garbled discussion. I think that the NSA head was answering the question that he thought the person asking him the question really wanted answered, which is whether there was a duty to report contract with a foreign official in a quasi-official capacity, rather than the literal question that was asked. It is quite possible that he wasn't consciously aware of the literal question that he was asked because his brain translated it into what he believed he was being asked before he even had time to really think about it.

The issue here is not a duty to be forthcoming, but a duty to try to be clear and an authority to try to understand what someone is really asking you in a question and to tell someone what they are trying to get to the bottom of.

These are Senators here, taking them to task for minor verbal fumbles isn't the politic thing to do, even if it can make the proceeding a bit more complicated to follow.

This kind of conservation pattern is common in everyday speech, happens not infrequently in court even though it shouldn't, and happens more frequently in Congress where understanding more than precision of speech is the goal. Generally, in ordinary conversation and even in formal testimony if someone says something that they clearly don't mean and you want to be sure of their true meaning anyway, you ask a question that makes the kind of distinction that you are making clear and confirm that this is really what the person meant to say or is really not what the person meant to say.

To read more into a statement like that in that context without clarifying if what he literally said is really what he meant is really just playing "gotcha" rather than trying to determine if there is really a new policy or if the NSA director is really taking such an extreme position.

The NSA director probably knows the answer to the literal question being asked, but probably does not know the answer to the more technical question that was meant to be asked. And, when in doubt, it is better not to claim to know something you aren't 100% sure of in an official public statement.

Ideally, someone would clear up the obvious mutual misunderstanding at some later point in the hearing, but following the natural tendency to answer what you think you are being asked if the question is not clarified when you give an answer that seems inappropriate to the exact question asked shouldn't be considered a major ominous policy statement or an intentional lie.

Is there anything to legally preclude it from happening?

The freedom of association under the first amendment prohibits something like this from happening.

  • 1
    While the question did not ask about them, there are also practical considerations preventing the US from demanding that all its citizens report all of their interactions with foreign nationals. There would be literally tens of millions of these reports every day. – phoog Mar 25 '17 at 6:42
  • @phoog, practical considerations don't preclude selective enforcement. – grovkin Jul 19 '17 at 4:37
  • @grovkin that would be a license to imprison just about any US citizen arbitrarily. – phoog Jul 19 '17 at 5:15
  • 1
    @phoog And the problem (from the point of view of the Executive) with that is...? (FAOD: Not just this particular administration, any administration.) – Martin Bonner supports Monica Nov 14 '17 at 16:47
  • @MartinBonner In making the last comment, I was thinking more of the judiciary. – phoog Nov 14 '17 at 18:28

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.