Response to Senator Feinstein

Yesterday I received an email response to a message that I had sent California Senator Diane Feinstein, Chairman of the Senate Intelligence Committee.  Since I doubt Senator Feinstein is interested in a back-and-forth email conversation, I thought I would deconstruct her message here.

Dear Mr. Trapp:

I received your communication indicating your concerns about the two National Security Agency programs that have been in the news recently.   I appreciate that you took the time to write on this important issue and welcome the opportunity to respond.

Thanks to you for taking time away from scoring cushy no-bid contracts for your husband’s company to reply. At one point you were one of the best people in the Senate, but I understand that Lord Acton pretty much hit the nail on the head.

First, I understand your concerns and want to point out that by law, the government cannot listen to an American’s telephone calls or read their emails without a court warrant issued upon a showing of probable cause.  As is described in the attachment to this letter provided by the Executive Branch, the programs that were recently disclosed have to do with information about phone calls – the kind of information that you might find on a telephone bill – in one case, and the internet communications (such as email) of non-Americans outside the United States in the other case.  Both programs are subject to checks and balances, and oversight by the Executive Branch, the Congress, and the Judiciary.

The said attachment was not on anyone’s letterhead and had no signature, therefore its credibility is suspect, at best.  So the government is getting the information contained in my phone bill without a warrant and without probable cause, isn’t this a violation of that little thing called the 4th Amendment to the US Constitution?  Didn’t you take an oath to uphold the US Constitution against all enemies foreign and domestic? And if this information shouldn’t be considered private, why don’t you send me a copy of your phone bill? Ahh…two sets of laws for the two classes, rulers and ruled. How American is that?

As Chairman of the Senate Intelligence Committee, I can tell you that I believe the oversight we have conducted is strong and effective and I am doing my level best to get more information declassified.  Please know that it is equally frustrating to me, as it is to you, that I cannot provide more detail on the value these programs provide and the strict limitations placed on how this information is used.  I take serious my responsibility to make sure intelligence programs are effective, but I work equally hard to ensure that intelligence activities strictly comply with the Constitution and our laws and protect Americans’ privacy rights.

And how long do you think a democracy can stand against secret laws, secret courts, and secret enforcement actions?  The government’s actions since 9/11 have done far more to damage the fabric of our nation than the terrorists did.

These surveillance programs have proven to be very effective in identifying terrorists, their activities, and those associated with terrorist plots, and in allowing the Intelligence Community and the Federal Bureau of Investigation to prevent numerous terrorist attacks.  More information on this should be forthcoming.

I would rather have my rights restored and have the occasional terrorist attack slip through than to give them up without a fight.  Bin Laden may be dead, and in the short term he may have lost. But long term, our knee jerk response to his actions have done grave–perhaps mortal–damage our nation.

· On June 18, 2003, the Director of the National Security Agency (NSA) testified to the House Intelligence Committee that there have been “over 50 potential terrorist events” that these programs helped prevent.

· While the specific uses of these surveillance programs remain largely classified, I have reviewed the classified testimony and reports from the Executive Branch that describe in detail how this surveillance has stopped attacks.

· Two examples where these surveillance programs were used to prevent terrorist attacks were: (1) the attempted bombing of the New York City subway system in September 2009 by Najibullah Zazi and his co-conspirators; and (2) the attempted attack on a Danish newspaper that published cartoons of the Prophet Mohammed in October 2009 by U.S. citizen David Headley and his associates.

· Regarding the planned bombing of the New York City subway system, the NSA has determined that in early September of 2009, while monitoring the activities of Al Qaeda terrorists in Pakistan, NSA noted contact from an individual in the U.S. that the FBI subsequently identified as Colorado-based Najibullah Zazi.  The U.S. Intelligence Community, including the FBI and NSA, worked in concert to determine his relationship with Al Qaeda, as well as identify any foreign or domestic terrorist links.  The FBI tracked Zazi as he traveled to New York to meet with co-conspirators, where they were planning to conduct a terrorist attack using hydrogen peroxide bombs placed in backpacks. Zazi and his co-conspirators were subsequently arrested. Zazi eventually pleaded guilty to conspiring to bomb the NYC subway system.

· Regarding terrorist David Headley, he was also involved in the planning and reconnaissance of the 2008 terrorist attacks in Mumbai, India that killed 166 people, including six Americans.  According to NSA, in October 2009, Headley, a Chicago businessman and dual U.S. and Pakistani citizen, was arrested by the FBI as he tried to depart from Chicago O’Hare airport on a trip to Europe.  Headley was charged with material support to terrorism based on his involvement in the planning and reconnaissance of the hotel attack in Mumbai 2008.  At the time of his arrest, Headley and his colleagues were plotting to attack the Danish newspaper that published the unflattering cartoons of the Prophet Mohammed, at the behest of Al Qaeda.

In a democracy there is very little that we “just have to take the government’s word for.” The only “terrorists” I see getting arrested are those setup by the FBI. If the FBI has to provide the bombs for these potential acts, they can hardly be considered serious. Since you are concerned with American citizens being killed by terrorists in foreign lands, I would like to bring up the matter of American citizens being targeted by drone strikes without a trial. Both Anwar al-Awlaki and his son were illegally executed by the president, does this concern you, too?  In my mind, what defines a terrorist depends on which side you are on.

Not only has Congress been briefed on these programs, but laws passed and enacted since 9/11 specifically authorize them.  The surveillance programs are authorized by the Foreign Intelligence Surveillance Act (FISA), which itself was enacted by Congress in 1978 to establish the legal structure to carry out these programs, but also to prevent government abuses, such as surveillance of Americans without approval from the federal courts. The Act authorizes the government to gather communications and other information for foreign intelligence purposes.  It also establishes privacy protections, oversight mechanisms (including court review), and other restrictions to protect privacy rights of Americans.

Secret courts, secret enforcement, secret rules, secret legal interpretations; none of this is compatible with a free nation. If we don’t know about it, how can we have a national discussion concerning its compatibility with our ideals?

The laws that have established and reauthorized these programs since 9/11 have passed by mostly overwhelming margins.  For example, the phone call business record program was reauthorized most recently on May 26, 2011 by a vote of 72-23 in the Senate and 250-153 in the House.  The internet communications program was reauthorized most recently on December 30, 2012 by a vote of 73-22 in the Senate and 301-118 in the House.

Sure, and Saddam Hussein continually won re-election with a near 100% vote. What’s your point here?

Attached to this letter is a brief summary of the two intelligence surveillance programs that were recently disclosed in media articles.  While I very much regret the disclosure of classified information in a way that will damage our ability to identify and stop terrorist activity, I believe it is important to ensure that the public record now available on these programs is accurate and provided with the proper context.

Once again, no letterhead, no signature, no accountability.

Again, thank you for contacting me with your concerns and comments.  I appreciate knowing your views and hope you continue to inform me of issues that matter to you.  If you have any additional questions or concerns, please do not hesitate to contact my office in Washington, D.C. at (202) 224-3841.

Sincerely yours,
Dianne Feinstein
United States Senator

I don’t know why, but I found your missive less than assuring.




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