Every Bad Idea in the Last Forty Years

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My transcription of Senator Jay Rockefeller’s handwritten letter.

July 17, 2003

Dear Mr. Vice President,

I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, Chairman Roberts and our House Intelligence Committee counterparts.

Clearly, the activities we discussed raise profound oversight issues. As you know, I am neither technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

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Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller

Links for abbreviations, laws, and bad ideas:

• DCI – Director of the Central Intelligence Agency
• DIRNSA – Director of the National Security Agency
• TIA – initially Total Information Awareness, later changed to Terrorist Information Awareness.
• Fourth Amendment – restrictions on national security wiretapping
• FISA – Foreign Intelligence Surveillance Act[50 U.S.C. Chapter 36]
• Posse Comitatus – Posse Comitatus Act[18 U.S.C. § 1385] 1878
• Iran-Contra – John Poindexter’s last major project

First of all, FISA deals with wars and declarations of wars – the President has a two-week period during which he/she can conduct warrantless wiretaps, we are well beyond that limit.

Second, the Posse Comitatus Act specifically deals with the use of the military within the US. It requires Constitutional authority or an act of Congress, not the whim of a President.

Third, what is being done is an iteration of the TIA, which Congress specifically rejected because of concerns over violations of the Fourth Amendment.

Fourth, if you take the time to read the Declaration of Independence you will see that the main reason for the Revolution was an abuse of executive power by the King. The signers risked their lives and fortunes because they were fed up with the unrestricted power of the crown.

Taken all together it is obvious that the framers of the Constitution intended to limit power, not grant it, wholesale, to any of the three branches of government. The only way of gaining a new power is by amending the Constitution. It is only by virtue of the Sixteenth Amendment that the Federal government can levy the income tax.

The only constitutional right that can be limited during a war or rebellion is the writ of habeas corpus, but that can only be done where the courts are not functioning because of the war or rebellion.

At this point it should be obvious that they can’t comply with FISA because they aren’t targeting anyone, they are grabbing everything out there, without any regard to what they are gathering. They are hoping to “get lucky” and find something useful.

The backers of “King George” claim that the only limits on the power of the President are elections or impeachment. If that is their view, the solution is obvious: Impeach the arrogant son-of-a-bitch. Maybe we can then actually get on with business of fighting terrorism and actually catch Osama bin Laden.

[Update: The meeting referred to in the letter featured: Richard Cheney [VP], George Tenet [DCI], Lt. General Michael Hayden, USAF [DIRNSA], Senator Pat Roberts [R-KS], Senator Jay Rockefeller [D-WV], Congressman Porter Goss [R-FL], and Congresswoman Jane Harmon [D-CA]. Goss is the current DCI, and Hayden is now the Deputy Director of National Intelligence under John Negroponte.]

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