TIA and TSP Timing by emptywheel July 30, 2007
Commenter joejoejoe sent me a superb timeline to show the chronology of Congress' building opposition to the Total Information Awareness program as it relates to the NSA's domestic wiretap program (how cool is that? I, the chronology weenie, am getting timelines out of the blue! Better than Christmas!!), which appears at the bottom of this post. I'd like to pull out just a few salient dates and add four (in bold italics) to what joejoejoe did. I think the time line lends support for the argument that one of the problems--a big problem--with the domestic wiretap program is that it violated clear instructions from Congress. 2/20/03 - President Bush signed reconciled House Senate version of above law with provision that terminates funding to TIA in 90 days and requires a Congressional update.(Consolidated Appropriations Resolution, 2003, No.108?7, Division M, §111(b) [signed Feb. 20, 2003]) 5/20/03 - 90 days later, Pentagon changes name of TIA from Total Information Awareness to Terrorist Information Awareness and calls it new program. Problem solved! 7/17/03 - Briefing for Intelligence Committee leadership (Pat Roberts, Jay Rockefeller, Porter Goss, and Jane Harman) on domestic wiretap program. This would be the last briefing before the crisis March 10 meeting. 7/17/03 - After his SECOND briefing on the program, Jay Rockefeller writes his CYA memo to Cheney, which states (thanks to Ann for the reminder on the date): 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. [snip] 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. [snip] 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. 7/18/03 - Senate votes unanimously to block funding for the Total Information Awareness program. According to the Defense Department appropriations, no funding "may be obligated or expended on research and development on the Terrorism Information Awareness program." - - over Bush admin. objections. Department of Defense Appropriations Act, 2004, Pub. L. No. 108?87, § 8131, 117 Stat. 1054, 1102 (2003) 9/26/03 - Congress eliminates funding for TIA save some military and foreign surveillance exceptions - see Sec. 8131 (see signing statement below) 9/30-10/1/03 - Bush signs '04 Defense budget with signing statement, 1/04 - Given the pattern established in the prior three years twenty-seven months, there should have been a briefing of Congress in January 2004, but it did not occur. 2/11/04 - Senate Intelligence Committe hearing: "one of TIA's strongest critics questioned whether intelligence officials knew that some of its programs had been moved to other agencies. Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was "correct that when [TIA] was closed, that several ... projects were moved to various intelligence agencies.... I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter's programs are going on somewhere else." Negroponte and Mueller said they didn't know. But Negroponte's deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, "I'd like to answer in closed session." Asked for comment, Wyden's spokeswoman referred to his hearing statements." (via the National Journal, 2/23/04) 3/04/04 (est.) - Comey and Ashcroft agree, " We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed." Ashrcroft taken ill. (see Marty Lederman on Comey's testimony at Balkanization) 3/10/04 - Congressional briefing on domestic wiretap program 3/10/04 - Gonzales hospital visit. 2/3/05 - First briefing of Intelligence Committee leadership after the hospital confrontation, eleven months earlier In other words, the Administration briefed Congress on the domestic wiretap program the day before the Senate made it explicit that they would not permit any data-mining of American citizens. That July 2003 briefing occurred in the normal pattern established in the previous two years, so it may be a coincidence. Or it may be that the Administration briefed Congress when they did before they would have a legal obligation to inform them they were breaking the law prohibiting data-mining of Americans. But that was also the briefing after which Rockefeller wrote his memo to Cheney expressing concerns about the program. I had always understood that Rockefeller sent that memo after his first briefing on the program. But that's not right--he was briefed on January 29, 2003, but presumably sent no memo after that meeting. In other words, something about the July 17 briefing raised new concerns for him, and one of those concerns was the program's apparent similarity to the TIA program, which the Senate was just about to vote to explicitly prohibit funding. Then, as I've pointed out before, the Administration skipped the briefing they should have held in January 2004, the first briefing after the law went into effect. They don't hold a briefing until March 10, when they've hit a crisis. Significantly, this is the first (of two, the second being in January 2006, after the NYT has exposed the program) briefing that includes Congressional leadership, in addition to the Intelligence Committee leadership; plus, there's the Tom DeLay briefing the next day, on March 11. We know they asked whether it'd be possible to pass legislation to make the program legal, so it's likely they finally included Congressional leadership in the briefings because they wanted legislation passed. Were they trying to legislate a work-around of the Appropriations Act? That might explain why the Gang of 8 told them it wouldn't happen, there was no way Congress would permit the program legislatively. And of course, they don't brief Congress (though they do brief Pete Hoekstra, when he becomes Chair of HPSCI) again until February 2005. Eleven long months when they didn't tell Congress they (may have) been breaking the law. -------------------------------------------------------------------------------- joejoejoe's timeline: Timeline below...(most sources from the EPIC TIA page) 11/9/02 - NYT reports on Total Information Awareness data-mining program funded through DARPA 11/22/02 - Sen. Grassley says of TIA, "I am at a loss to understand why DoD resources are being spent on research for domestic law enforcement." 1/13/03 - Sens. Leahy, Cantwell, and Feingold send a 7 page letter to AG Ashcroft asking for a full account of "the extent to which the Justice Department is relying on data-mining" in light of the TIA disclosures 1/21/03 - The DoD discloses it is sharing TIA information with the FBI in a response to a letter from Sen. Grassley, DoD "advised of contacts with the Federal Bureau of Investigation (FBI), Foreign Terrorist Tracking Task Force, Department of Justice, and components of the Department of Homeland Security, DARPA officials note it is their understanding that the FBI is working on an MOU with DARPA for possible experimentation with TIA technology in the future." 1/24/03 - Senate Limits Total Information Awareness System. Senators led by Ron Wyden (D-OR) accepted Amendment 59 to a spending bill that will suspend the development of the Total Information Awareness (TIA) system. Funding for development of TIA will end 60 days after the passage of the bill unless the intelligence community submits a detailed report to Congress on the privacy and civil liberties implications of the system. The amendment further requires Congressional authorization before TIA is deployed by any agency. However, exceptions in the amendment allow President Bush to approve continued funding for TIA, and the use of TIA for military operations outside the United States. 2/20/03 - President Bush signed reconciled House Senate version of above law with provision that terminates funding to TIA in 90 days and requires a Congressional update.(Consolidated Appropriations Resolution, 2003, No.108?7, Division M, §111(b) [signed Feb. 20, 2003]) 5/20/03 - 90 days later, Pentagon changes name of TIA from Total Information Awareness to Terrorist Information Awareness and calls it new program. Problem solved! 7/18/03 - Senate votes unanimously to block funding for the Total Information Awareness program. According to the Defense Department appropriations, no funding "may be obligated or expended on research and development on the Terrorism Information Awareness program." - - over Bush admin. objections. Department of Defense Appropriations Act, 2004, Pub. L. No. 108?87, § 8131, 117 Stat. 1054, 1102 (2003) 9/26/03 - Congress eliminates funding for TIA save some military and foreign surveillance exceptions - see Sec. 8131 (see signing statement below) Sec. 8131. (a) Notwithstanding any other provision of law, none of the funds appropriated or otherwise made available in this or any other Act may be obligated for the Terrorism Information Awareness Program: Provided, That this limitation shall not apply to the program hereby authorized for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence, as described in the Classified Annex accompanying the Department of Defense Appropriations Act, 2004, for which funds are expressly provided in the National Foreign Intelligence Program for counterterrorism foreign intelligence purposes. (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. (c) In this section, the term "Terrorism Information Awareness Program" means the program known either as Terrorism Information Awareness or Total Information Awareness, or any successor program, funded by the Defense Advanced Research Projects Agency, or any other Department or element of the Federal Government, including the individual components of such Program developed by the Defense Advanced Research Projects Agency. 9/30-10/1/03 - Bush signs '04 Defense budget with signing statement, Sections 8082, 8091, 8117, and 8131 of the Act make clear that the classified annex accompanies but is not incorporated as a part of the Act, and therefore the classified annex does not meet the bicameralism and presentment requirements specified by the Constitution for the making of a law. Accordingly, the executive branch shall construe the classified annex references in sections 8082, 8091, 8117, and 8131 as advisory in effect. My Administration continues to discourage any efforts to enact secret law as part of defense funding legislation and encourages instead appropriate use of classified annexes to committee reports and joint statements of managers that accompany the final legislation. (via Balkanization comments) 1/1/04 - New fiscal year 2004. [ed: I think fiscal years begin October 1, so this should be October 1, 2003] Early '04 - Testimony of James Comey: In the early part of 2004, the Department of Justice was engaged ? the Office of Legal Counsel, under my supervision ? in a reevaluation both factually and legally of a particular classified program. And it was a program that was renewed on a regular basis, and required signature by the attorney general certifying to its legality. And the ? and I remember the precise date. The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter. And a week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter." 2/11/04 - Senate Intelligence Committe hearing: "one of TIA's strongest critics questioned whether intelligence officials knew that some of its programs had been moved to other agencies. Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was "correct that when [TIA] was closed, that several ... projects were moved to various intelligence agencies.... I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter's programs are going on somewhere else." Negroponte and Mueller said they didn't know. But Negroponte's deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, "I'd like to answer in closed session." Asked for comment, Wyden's spokeswoman referred to his hearing statements." (via the National Journal, 2/23/04) 3/04/04 (est.) - Comey and Ashcroft agree, " We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed." Ashrcroft taken ill. (see Marty Lederman on Comey's testimony at Balkanization) 3/10/04 - Gonzales hospital visit. http://thenexthurrah.typepad.com/the_next_hurrah/2007/07/tia-and-tsp.html ~~~ Sen. Rockefeller’s Memo To Cheney Preceded TIA Defunding By One Day By: Nicole Belle on Monday, July 30th, 2007 at 3:15 PM - PDT ah…the power of the blogosphere…we can do the work that the journalists in the MSM don’t do and come up with a timeline that cuts through the White House’s obfuscations: The Next Hurrah: Commenter joejoejoe sent me a superb timeline to show the chronology of Congress’ building opposition to the Total Information Awareness program as it relates to the NSA’s domestic wiretap program[..] I’d like to pull out just a few salient dates and add four (in bold italics) to what joejoejoe did. I think the time line lends support for the argument that one of the problems–a big problem–with the domestic wiretap program is that it violated clear instructions from Congress. 2/20/03 - President Bush signed reconciled House Senate version of above law with provision that terminates funding to TIA in 90 days and requires a Congressional update.(Consolidated Appropriations Resolution, 2003, No.108?7, Division M, §111(b) [signed Feb. 20, 2003]) 5/20/03 - 90 days later, Pentagon changes name of TIA from Total Information Awareness to Terrorist Information Awareness and calls it new program. Problem solved! 7/17/03 - Briefing for Intelligence Committee leadership (Pat Roberts, Jay Rockefeller, Porter Goss, and Jane Harman) on domestic wiretap program. This would be the last briefing before the crisis March 10 meeting. 7/17/03 - After his SECOND briefing on the program, Jay Rockefeller writes his CYA memo to Cheney [..] 7/18/03 - Senate votes unanimously to block funding for the Total Information Awareness program. According to the Defense Department appropriations, no funding “may be obligated or expended on research and development on the Terrorism Information Awareness program.” - - over Bush admin. objections. http://www.crooksandliars.com/2007/07/30/sen-rockefellers-memo-to-cheney-preceded-tia-defunding-by-one-day/