[JURIST] US Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) and ranking Republican Sen. Arlen Specter (R-PA) [official websites] on Monday sent a letter [PDF text] to White House counsel Fred Fielding demanding the Bush administration's compliance with subpoenas [press release] for information about the warrantless domestic surveillance program [JURIST news archive]. The letter asserts that the White House committed to sending the documents by Monday and renews the committee's call for the information. The committee formally subpoenaed the documents on June 27 in regards to proposed legislation to amend the 1978 Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive]. The initial compliance deadline of July 18 was later extended to August 20 [letter, PDF], when Fielding told Leahy in a letter [text, PDF] that the White House needed more time to comply with the request. In response Leahy threatened to suggest contempt proceedings [JURIST report] before the committee.
In the letter, Leahy and Specter wrote:
You have now had more than ample time to collect and process the relevant documents. Responsive information to those subpoenas is long overdue. You have made commitments to provide responsive information over the last several months and even recently, but no such information has yet been provided.In early August, Congress passed [JURIST report] the Protect America Act 2007 (PAA) [S 1927 materials], legislation that gives the executive branch expanded surveillance authority for a period of six months while Congress works on long-term legislation to "modernize" FISA. The subpoenas mentioned in Leahy's and Specter's letter cover documents and information relevant to the legislation planned by Congress to amend FISA permanently. Earlier this month, Democrats in the US House of Representatives introduced [JURIST report] a draft bill [HR 3773 materials; HJC summary, PDF] to replace the temporary PAA [RESTORE v. PAA comparison, PDF]. The so-called RESTORE Act of 2007 ("Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007") would increase court oversight of the Terrorist Surveillance Program [DOJ fact sheet] run by the National Security Agency. Though consideration of the House bill has been postponed [JURIST report], the Senate Intelligence Committee last week debated the Senate version of legislation to amend FISA.
Instead, we read that a White House spokesperson has now conditioned the production of information on prior Senate agreement to provide retroactive immunity from liability for communications carriers. That is unacceptable and would turn the legislative process upside down. If the Administration wants our support for immunity, it should comply with the subpoenas, provide the information, and justify its request. As we have both said, it is wrongheaded to ask Senators to consider immunity without their being informed about the legal justifications purportedly excusing the conduct being immunized. Although the two of us have been briefed on certain aspects of the President's program, this cannot substitute for access to the documents and legal analysis needed to inform the legislative decisions of the Committee as a whole.