WASHINGTON — Who knows how many times West Virginia's Sen. Jay Rockefeller, the Democratic vice chairman of the Senate Intelligence Committee, has sat on his hands or held his tongue about how our country gathers intelligence in the war on terror. But on Saturday, when President Bush acknowledged a highly classified domestic spying program, Rockefeller was liberated and spoke out against it.
Together, Rockefeller and Bush have pulled back the curtain on the supersecret world of the intelligence gathering and congressional oversight. What's been discovered, Senate Democrats and some Republicans say, is too much gathering with too little oversight.
The New York Times broke the story on Friday about the National Security Agency program of domestic wiretapping. The next day the president “outed” the program, saying he had the authority to do it and that “leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.”
Membership has its privileges
As a member of the so-called “gang of four” which includes the top Republican and Democrat of the Senate and House intelligence committees, Rockefeller was one of four members of Congress who received those briefings. The group can be summoned to the White House on short notice to be advised on the most sensitive intelligence information or plans for covert operations. It is safe to assume that if the United States is, in fact, operating secret prisons overseas, these four know plenty about them.
Video: Bush forceful on spying But membership also has its burdens. The "gang" — Republican Sen. Pat Roberts of Kansas and Rep. Peter Hoekstra of Michigan and Democrats Rockefeller and Rep. Jane Harman of California — is virtually gagged from discussing anything from meetings with anyone outside the group — not even other senators, staffers or lawyers with security clearance on the intelligence committees. “You can't discuss it with anybody as long as you live,” Rockefeller said Monday.
And for Rockefeller and Harmon, the senior Democrats on the Senate and House intelligence committees, respectively, membership can be even more problematic. If they want to object to anything the administration is doing, they're forbidden from doing so publicly.
That was the case with Rockefeller until Monday. He'd informed the administration he had concerns and was suspicious of the NSA program, but he had no recourse to stop it from going forward and he couldn't go public. “I wasn't going to say anything until the president starting talking about it so openly,” he said.
‘They implied implicit consent’
In laying out his case for the NSA's domestic wire tapping on Saturday, Bush told the nation, “Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.” Questioned about whether executive power had run amok at Monday’s presidential news conference, an irritated Bush replied, “We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times.”
Rockefeller was annoyed. “They're just saying we're all briefed and informed and they implied implicit consent and all the rest of that and it's totally untrue,” he recounted outside the Senate chamber after Bush's news conference. He said the impression the administration was leaving was “totally phony.”
But once the president acknowledged — and defended — the classified program, it became unclassified. Rockefeller was then able to go back to a secure space in the Senate Intelligence Committee's offices and retrieve a handwritten letter he'd given to the Vice President Dick Cheney more than two years ago.
“I am retaining a copy of this letter in a sealed envelope,” the letter said, “to ensure that I have a record of this communication.”
The letter was written in the summer of 2003, just after Rockefeller had been made vice chairman of the Senate Intelligence Committee. It was his first meeting with the “heavy hitters.” The NSA program came up “and I just said I had some concerns.”
The concerns were voiced in a follow-up letter after the meeting to Cheney. “Clearly, the activities we discussed raise profound oversight issues," Rockefeller's letter stated. "As you know, I am neither a 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. ... 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.”
Rockefeller said his concerns “were never addressed” by the administration. “Whether or not the vice president saw my letter or not I have no idea”
What's in a briefing
The revelation of the NSA program and the subsequent congressional fallout have raised concerns on both sides of the aisle about the whether the “gang of four” concept provides adequate checks and balances over the president. Sen. Arlen Specter, R-Pa., says “it does not.”
Specter is the chairman of the Senate Judiciary Committee, but has previously served as chairman of the Senate Intelligence Committee. “The people in that position are informed," he said. "They're not consulted or asked or have a determination in what is done.”
Viewed by many as one of the sharpest constitutional minds in the Senate, Specter has often butted heads with the administration. He says he's “skeptical” the administration's rationale for bypassing the courts for wiretaps and plans to call for hearings into the matter in late January. “You can't have the administration and a select number of members alter the law.”
As for Rockefeller, he said sending a letter to Cheney was his only recourse. “That's the protocol.” He also suggested his dissent over intelligence issues may extend beyond the NSA matter, saying, “It's not the only letter I've written. That's all I'm saying.”
In a written statement on Tuesday, Senate Intelligence Committee Chairman Pat Roberts, said Rockefeller’s action, "appears to be politically advantageous." Roberts accused Rockefeller of "feigning helplessness" and said "a United States Senator has significant tools with which to wield power and influence over the executive branch."
Roberts listed options he said Rockefeller could have pursued, including discussing his concerns with Roberts and raising objections with the Vice President during various briefings. "Forgive me if I find this to be inconsistent and a bit disingenuous," Roberts concluded in his statement.
Ken Strickland covers Capitol Hill for NBC News