On July 17, 2003, Senator Jay Rockefeller came back from his second briefing on the NSA’s domestic spying program and recorded his concerns about the program in a letter addressed to Vice President Cheney.

The briefing took place just as the Senate was about to vote to defund any data-mining of American citizens. The Senate had tried, earlier that year, to defund the data-mining program, Total Information Awareness, yet Bush had just changed its name and carried on. So in July 2003, the Senate was trying to write legislation explicit enough so the Administration couldn’t pull off such a head-fake again.

Which is why it is so important that Rockefeller stated that the NSA’s domestic spying program reminded him of Total Information Awareness.

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 counterparts.


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.


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. [my emphasis]

Rockefeller wasn’t just raising general concerns about the domestic spying program. He was stating explicitly that the ongoing program sounded a lot like the TIA program that was being made illegal, even as the briefing occurred.

As it happened, Congress did pass the section of the Appropriations Act that defunded any data-mining of US citizens or data-mining within the US.

Sec. 8131.


(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens.

But when Bush signed the Appropriations Act, he signed a mumbo-jumbo filled signing statement specifically addressing that section of the Act. Effectively, the signing statement claimed that since the Annex to the Act that referred to other data-mining programs was classified, any reference to such programs wasn’t really part of the duly-signed law. It was just “advisory.”

The Administration did not brief any member of Congress on the program again until March 10, 2004, the day of the confrontation in Ashcroft’s hospital room.

Since that time, of course, we’ve learned that the Bush Administration has been using data-mining. It has been using data-mining to analyze data collected in the United States to identify targets for wiretaps, one party to which could be in the United States. And in fact, NSA didn’t have the technical ability to ensure that it wasn’t tapping communications between two targets, both of whom were in the United States. The Bush Administration was violating the clear intent of the law passed in 2003 to forbid data-mining in the United States.

When Bush confirmed the domestic wiretap program, he described it in terms that would mostly kind of comply with Congress’ intent when it explicitly forbade such activities. But he never denied that the activities associated with the program prior to March 2004 clearly violated Congress’ intent when it passed the Appropriations Act in 2003.



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.