There was nothing pre-approved about the question. Senator Wyden said he sent notice a day in advance that he would be asking the question. The ODNI General Counsel said that Clapper hadn't seen the question prior to the Senate hearing, and tried to correct it after the fact. [1]
Keep in mind that this was a program that everyone on the intelligence committee had already been briefed on. You could make the argument that he misled the American public, but not Congress. Also note that since the intelligence committee knew about the program, any one of the members could have also issued a public statement clarifying the situation, but they didn't.
People liked to harp on Clapper, but Wyden was the one who, instead of just telling his constituents himself (he wouldn't be subject to prosecution, but might have been kicked off the intelligence committee) or putting forth legislation restricting Section 215 collection, decided to put the DNI in the position of either violating the law by disclosing a classified program or telling the American public the "least untruthful" statement.
That's contrary to what I'd heard, but if it's in fact the case then that does change things a little.
Note that there is again a flagrant lie in the GC's writing there - "Mr. Clapper [...] focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate." We know now that this is only close to true in any sense with the disingenuous and misleading definition of "collect" the NSA uses - which has no place in ordinary English and deserves no place in legal opinions. Of course, lying in a letter to the editor to the NY Times isn't a crime, but if the GC has no compunctions about wilfully misleading the reader I'm highly skeptical of their other claims.
It's more than a little odd that he wouldn't have looked at the questions in advance - he knew this was a public forum, in which providing the most correct information while not leaking anything seems an important part of his job, and is likely to take some care and forethought.
"Keep in mind that this was a program that everyone on the intelligence committee had already been briefed on. You could make the argument that he misled the American public, but not Congress."
Most of Congress is not on either intelligence committee. Whether misleading them is correct is a deeper discussion, but if the answer is "no" then I think it's fair to say he mislead Congress as well as the American public.
In any case, I agree that Wyden's approach here has been a little odd, though I at least appreciate the direction he's been pushing.
I don't think it's necessarily odd that he wouldn't have seen the question if it was sent only a day ahead of time. Was there a list of questions that all of the Senators had compiled, or was this just one question independently sent from Sen Wyden's office? Was it sent in the morning or afternoon? What was Clapper doing that day? Was he in his office? Was he out in meetings/briefings all day? If it sat in his inbox for a week I'd be less likely to give him the benefit of the doubt, but there's probably a whole host of reasons that something sent the day prior could have been overlooked.
Was his answer misleading? I definitely agree with you there. Was it a lie? That would imply that it was deliberate, which is tough to prove. He's gone on the record saying that he misunderstood the question and tried to correct it after the fact[1]. If it was deliberate, why lie directly to people that he knows know the truth?
I don't see a flagrant lie in the GC's writing. That quote goes back into the content/metadata issue. There hasn't been any leak so far showing content collection of Americans' communications. All of the debate in Congress regarding these programs has centered around bulk metadata collection. The issue everyone brings up when they accuse Clapper of perjury is the content/metadata issue, not the definition of collection. I haven't seen any government official denying that the NSA collects American cell phone metadata (besides this one instance with Clapper, which he admitted was erroneous).
"That quote goes back into the content/metadata issue. There hasn't been any leak so far showing content collection of Americans' communications. All of the debate in Congress regarding these programs has centered around bulk metadata collection."
First, the metadata distinction is absurd in this context. The question asked was "Does the NSA collect any kind of data at all on millions or hundreds of millions of Americans." Data on whether I call my mother every Friday is clearly data about me.
Second, even granting the metadata distinction, it's still false using any reasonable definition of "collect". Garbage men collect my trash by putting it into trucks and dumping it in a big pile. Numerous programs have been revealed under which the NSA is reading content of the communications of Americans and storing it in a database. Using "collects", precisely defined, in a way different than the rest of the world uses it in legal opinions and internal memos is possibly iffy but I don't think clearly unacceptable; using it that way with no clarification or definition in a communication directed at people predominately unfamiliar with the distinction you're drawing is nothing but a lie. "Honey, I wasn't lying when I said I didn't cheat on you. I know I slept with my secretary, but the way I use the word 'cheat' it only applies if I cook her breakfast afterwards." The testimony at the congressional hearing may have been such a communication; the opinion letter in the NYT was clearly so.
Keep in mind that this was a program that everyone on the intelligence committee had already been briefed on. You could make the argument that he misled the American public, but not Congress. Also note that since the intelligence committee knew about the program, any one of the members could have also issued a public statement clarifying the situation, but they didn't.
People liked to harp on Clapper, but Wyden was the one who, instead of just telling his constituents himself (he wouldn't be subject to prosecution, but might have been kicked off the intelligence committee) or putting forth legislation restricting Section 215 collection, decided to put the DNI in the position of either violating the law by disclosing a classified program or telling the American public the "least untruthful" statement.
[1] http://mobile.nytimes.com/2014/01/04/opinion/testimony-of-th...