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 it’s unreasonable to ask us to give them immunity for things we don’t 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.

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.

It remains unclear whether the documents delivered to the Senate intelligence committee are the same as the voluminous material demanded by the Senate Judiciary Committee. The Politico quotes Rockefeller as saying that the documents total "probably a couple million pages," but that might be a bit of an overstatement. Either way, it's unknown as yet if the Senate bill will actually include a retroactive immunity provision: that's a lot of material to review in advance of a Thursday mark-up. But the White House play seems to be to release the documentation in limited fashion -- committee staff read the documents in an "undisclosed location," but were permitted to take notes -- and use the disclosure as justification for retroactive immunity.

So far, neither the Senate Judiciary Committee nor any House entity has been permitted to view the documents. House Judiciary Committee Chairman John Conyers (D-MI) said he was "extremely disappointed" in a letter last night to White House legal counsel Fred Fielding. But Senate Majority Leader Harry Reid (D-NV) said yesterday that "we're going to make sure that in the process, the House is ultimately able to see" the documents. When Michael Mukasey, the president's pick for attorney general, goes before the Senate Judiciary Committee today, he will most likely be pressed on his support for letting the committee view the documents as well.

Rockefeller, often considered a squish by liberals on intelligence issues, praised the disclosure as a victory for Senate Democrats -- and, by extension, himself. Politico:

"I am hoarse from screaming," Rockefeller joked about his faceoff with the White House over the highly classified program. "But I scream well."

But the fight over retroactive immunity is still on the horizon.