FISA Fight: What happend to Jello Jay?

Note: Eric Lichtblau will be joining us for a live blogging session tomorrow at 7:00 p.m. EDT, to talk about his book, NSA wiretapping, and whatever you want to ask him.--mcjoan

In January of 2003, Senator Jay Rockefeller received his first briefing as a member of the Gang of Eight, the House and Senate leaders for each party and the ranking members of the Intelligence Committees, who were let in on some of the secrets of our national intelligence. Exactly what the Gang of Eight was told before the NYT's revealed the NSA's warrantless wiretapping is in dispute, but by all accounts, the picture seems to have be pretty incomplete.

It did raise some serious concerns among those members, though, including one Senator Jay Rockefeller. Eric Lichtblau, the reporter who with his colleague James Risen broke that NSA story, writes in his new book, Bush's Law: The Remaking of American Justice, about Rockefeller's concerns.

Senator Rockefeller, a close friend of Graham [who he replaced on the committee] received his first White House briefing on the program in January of 2003. After another briefing from General Hayden and George Tenet on the program that July, he decided he would no longer sit quietly. The program described to him sounded all too similar to the Pentagon's dreaded Total Information Awareness concept, which Congress had explicitly banned a few months earlier. So Rockefeller, hours after the latest briefing, composed a letter to Dick Cheney so secret that his own copy had to be locked away at a secure government site. His frustration was evident.

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

Rockefeller's concerns, he complained, were never answered--by the vice president or anyone else. At Cheney's direction, the program continued on. But the White House was now on notice: at least one member of the Gang of Eight was clearly troubled by the NSA's spying operation and all the unanswered questions it raised, and White House officials were getting increasing nervous about what else Rockefeller might do. The walls they had worked so meticulously to erect around the NSA program were showing the first real sign of cracking. (pp. 170-01)

Except of course, that it didn't crack until Lichtblau's and Risen's story broke.

But the point is, Rockefeller still hasn't received those answers. And on top of that, we've since learned that the TIA program that Rockefeller was duly concerned about in 2003 did continue after the Congress's ban.

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.

What happened to Rockefeller's concern when he became Chair of the Intelligence Committee, and chose to carry Bush and Cheney's water by pushing the White House FISA bill? Why would he want to close off one of the last remaining avenues to having those questions answered, by ending the suits brought by EFF and the ACLU?

I don't have the answers. But I do know that if his concerns have been put at ease by the Bush administration, he's increasingly alone among Democrats.