Wiretap Program Developments

[Also posted at TMV]

There were several important but divergent events yesterday in the continuing debate over the Bush Administration's NSA warrantless wiretap program:

- The Senate Intelligence Committee voted along party lines not to consider a motion by ranking Democrat Jay Rockefeller to open an investigation into the program. Apparently Republicans DeWine, Snowe and Hagel (who had previously expressed support for an investigation) were corralled by Administration pledges to "discuss" proposed legislation to govern the program.

Rockefeller said after the meeting "It is more than apparent to me that the White House has applied heavy pressure in recent days, in recent weeks, to prevent the committee from doing its job," while chairman Pat Roberts (KS) said "The administration is now committed to legislation and has agreed to brief more intelligence committee members on the nature of the surveillance program. The details of this agreement will take some time to work out."

At least one Republican, Olympia Snowe, left the door open for a future investigation, saying after the meeting "The administration must demonstrate its commitment to avoiding a constitutional deadlock by engaging in good-faith negotiations." She and Hagel told Roberts before the meeting "that they were prepared to vote for an investigation if the committee did not agree to work toward legislation," according to the LA Times.

- Legislation introduced by Senator DeWine, which is apparently that being "considered" by the White House, would "explicitly authorize the wiretapping, without court warrants, but create small Congressional subcommittees to oversee it." As the New York Times reports, this is not likely to go far enough for some Republicans, including Senator Specter (or myself), who hold the position that the program should be brought under the full jurisdiction of the FISA court.

- The White House "signaled" that it would not allow former Attorney General John Ashcroft or other former DoJ officials to testify about the program, which would greatly hamper any investigation. In a letter to Senator Arlen Specter, Asst. AG William Moschella wrote "We do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information" about the wiretaps. Since they were the officials in charge when the program was implemented (and at least one of them is known to have had strong concerns about its legality), the Adminstration's argument seems rather untenable.

- Over in the House, the Intelligence Committee agreed to open an inquiry into the program, but as the New York Times reports, a squabble over the scope of the inquiry has already emerged among committee Republicans. Subcommittee chair Heather Wilson said the investigation would cover "multiple avenues," to "thoroughly review this program and the FISA law."

Chairman Pete Hoekstra (a strong support of the Administration's position), however, said through an aide that the committee would "be much more limited in scope, focusing on whether federal surveillance laws needed to be changed and not on the eavesdropping program itself." This will certainly take some ironing out, but it is my hope that Rep. Wilson holds out and gets the full inquiry she has requested (particularly in light of the Senate non-action).

- Federal judge Henry Kennedy ruled "that a private group - the Electronic Privacy Information Center - will suffer irreparable harm if the documents that it has been requesting since December are not processed promptly under the Freedom of Information Act. He gave the Justice Department 20 days to respond to the request." Wrote Kennedy "President Bush has invited meaningful debate about the wireless surveillance program. That can only occur if DOJ processes its FOIA requests in a timely fashion and releases the information sought."