With the support of three Republicans, the Senate Judiciary Committee has followed through on its threat to subpoena DOJ documents that might illuminate the Bush administration's legal rationale for monitoring email and phone calls without the warrants required by the Foreign Intelligence Surveillance Act. In a sense, we already know the rationale: When it comes to fighting terrorism, the president can do whatever he wants. But the substance of the disagreements among administration officials about the surveillance program, including the standoff between John Ashcroft and Alberto Gonzales described in former Deputy Attorney General James Comey's recent congressional testimony, remains obscure. What aspects of the program did Ashcroft think rendered it illegal, and how were they fixed to his satisfaction? Did the safeguards the administration supposedly took to protect the privacy of innocent Americans vary over time?
Members of the Judiciary Committee may also want to know why it suddenly become possible, after the Democrats took control of Congress, to conduct the surveillance in conformance with FISA. How have the FISA procedures been tweaked to give the NSA the speed and flexibility the administration insisted could be obtained only by ignoring the law? And if everything is working OK now, why does the law still need to be changed?