If the Legal Argument Were More Persuasive, Would It Be Less Confidential?


Democrats in the House are threatening to issue subpoenas for Justice Department documents that might shed light on the legal rationale for the National Security Agency's warrantless surveillance program. The DOJ has refused to hand over the documents voluntarily "because of their confidential nature." The department has not asserted executive privilege (yet), so I'm not sure what the rationale for this confidentiality is. But especially now that the supposedly essential surveillance program supposedly has been abandoned, it is hard to understand why a general explanation of how it worked, including the safeguards it supposedly included to protect the privacy rights of innocent Americans, would jeopardize national security. The Democrats are not asking for a list of every suspect whose international email or telephone conversations were monitored. They are not asking about the intelligence methods used to identify these suspects. They are not asking what information the NSA gleaned from the surveillance about Al Qaeda or other terrorist organizations. They are just asking what features of the program made DOJ lawyers think it was legal, then decide it wasn't, then decide it was. They may also be wondering why it was absolutely essential to circumvent the Foreign Intelligence Surveillance Act until that circumvention was publicly revealed and widely condemned, whereupon it turned out to be perfectly possible to investigate terrorism within FISA's constraints yet also somehow necessary for Congress to change FISA, something the administration never thought to request until now.