Jacob Sullum

In May, former Deputy Attorney General James Comey testified that he refused to sign off on a renewal of the program in 2004. Comey, who at the time was in charge of the Justice Department because Attorney General John Ashcroft was recovering from emergency gall bladder surgery, said White House Counsel Alberto Gonzales (now the attorney general) and Chief of Staff Andrew Card tried to go over his head, appealing to Ashcroft as he lay in his hospital bed.

Perhaps hallucinating phantoms of lost liberty under the influence of post-surgical pain medication, Ashcroft backed up Comey, although he ultimately gave his blessing to the surveillance program after it was modified to assuage his concerns. To arouse the objections of John Ashcroft, who was notoriously dismissive of civil libertarian complaints about the administration's anti-terrorism policies, the program must have been pretty far over the line.

Among other things, members of the Senate Judiciary Committee would like to know what Ashcroft's concerns were, why they came up only after the program had been operating for three years, and how they were addressed. They may also be wondering how the Bush administration is now able to comply with FISA, why the administration still wants Congress to change the law, and why it did not ask for those changes years ago.

The Democrats are performing an important public service by pressing questions like these, even if they are mainly interested in embarrassing the other party and gaining an electoral advantage. I'd prefer a principled commitment to civil liberties and the rule of law, but I'll take partisan hostility in a pinch.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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