The following editorial appeared in Tuesday's Washington Post.
One of the most contentious issues in the debate over rewriting the foreign intelligence surveillance law is whether to give retroactive immunity from being sued to telecommunications companies that cooperated with the Bush administration's warrantless wiretapping. As it happens, we tend to agree with the administration that the companies deserve some protection here. But we also believe that it is important for lawmakers to understand precisely what conduct they are immunizing. The Bush administration seems to be taking the indefensible position that it will only share this information with those who have already agreed to agree with it.
The Senate intelligence committee "showed a willingness to want to include in their legislation retroactive liability protection for companies that were alleged to have helped the United States in the days after 9/11," White House press secretary Dana Perino said during Friday's briefing. "Because they were willing to do that, we were willing to show them some of the documents that they asked to see."
As to whether other lawmakers — members of the House intelligence committee or the two Judiciary committees — would be given access, Ms. Perino said, "I think that we'll wait and see to see who else is willing to include that provision in the bill." When we asked the White House for clarification, spokesman Tony Fratto explained "the question of the executive sharing documents with a committee has to do with Congress's inherent legislative function." If a committee has "no intention of legislating in this area," he added, "then it's hard to make the case that they have a need for relevant documents."
This stance reflects a misunderstanding of the legitimate needs of lawmakers in revising the Foreign Intelligence Surveillance Act and misconstrues even more badly the congressional role. The administration has asked lawmakers to approve retroactive immunity.
Congress is legislating in this area whether or not it grants this request. There is no excuse for the administration to grant access only to those inclined to agree with it. Moreover, much as the administration may wish it were otherwise, Congress has a critical oversight role in understanding what transpired in the warrantless surveillance whether or not it is passing specific legislation.
Whatever their position on immunity, no lawmakers should accept this high-handed dismissal of Congress's legitimate needs.