White House documents about the warrantless surveillance program, long sought by the Senate Judiciary Committee, are now in the hands of the Senate intelligence committee.
Why? The intelligence panel, which never issued the subpoenas that judiciary did, had a different piece of leverage: the possibility of passing retroactive legal immunity for telecommunications companies that cooperated with warrantless surveillance demands, a Bush administration priority.
Tomorrow the Senate intelligence committee is expected to mark up its version of a surveillance bill abridging some of the expanded eavesdropping authorities given to the administration in August. Its House companion, the Restore Act, doesn't include any retroactive legal immunity for the telecos, largely because the Democrats wouldn't bless immunity without knowing what exactly the companies did. (The administration ignored an offer by Steny Hoyer (D-MD), the Democratic majority leader in the House, to condition retroactive immunity on the release of the surveillance documents.) Arlen Specter, the Judiciary Committee's top Republican, who voted to subpoena the documents, joined in that chorus yesterday, calling retroactive immunity a "pig in a poke" absent administration disclosure: "I think itâs unreasonable to ask us to give them immunity for things we donât know what they did."
With an immunity-free markup looming in the Senate intelligence committee tomorrow, the administration appears to have relented. According to Tim Starks at Congressional Quarterly (not available online):
Senate Intelligence Chairman John D. Rockefeller IV, D-W.Va., said his staff Tuesday reviewed legal opinions and other documents the panel had sought related to the NSA program. He said his staff was allowed to take notes, but he hadn't been briefed on their contents yet and intended to view them for himself.
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Although Rockefeller's panel had been tentatively scheduled to mark up its own FISA legislation Thursday, "There wasn't going to be a markup unless we got that stuff," he said.