Late last month, the Senate Judiciary Committee sent subpoenas to the Administration requesting detailed information about the nature and extent of warrantless surveillance conducted on Americans in the United States since the September 11, 2001 terrorist attacks. 

With the political climate in Washington being what it is, it may be tempting to write off these subpoenas as just the latest salvo in an entrenched, inside-the-Beltway battle between Congress and the President.  That would be a mistake, for the subpoenas are in fact a critical tool for Congress in deciding whether and how to change the rules that protect innocent Americans against undue government snooping.

For the past several months, the Administration has been pressuring Congress to enact legislation amending the Foreign Intelligence Surveillance Act (FISA). The Administration claims that the changes are necessary to "modernize" FISA but in reality the proposed law would go much further: It would permit the Administration to carry out nearly unlimited surveillance without prior judicial approval, a tectonic shift away from the protections that exist under the current law.

Making matters worse, the Administration has yet to tell Congress what sorts of warrantless surveillance it has already conducted -- or may still be conducting -- under the surveillance programs approved by the White House after 2001. In effect, Congress is under heavy pressure to authorize a massive change in the law governing surveillance without knowing how it is currently being used, let alone how it will be used in the future.

Law enforcers and civil libertarians agree that some narrow changes may need to be made to FISA, but lawmakers should not consider the sweeping changes proposed by the Administration without full possession of the facts. Full, on-the-record answers to the questions posed in the subpoenas will go a long way toward providing the understanding lawmakers need in order to decide whether and how to proceed.

Last month CDT released two lists of our own relating to the warrantless wiretapping: "a Most Wanted Documents" list and "a Most Wanted Answers" list, providing a checklist of sorts for Congress and the public.

This is not a game of political "gotcha." At stake are time-tested rules that uphold Americans' core Fourth Amendment protections in the face of government surveillance. By complying with the Congressional subpoenas, the Administration can rebuild some of the trust it has lost and give Congress a true basis for evaluating the laws that affect Americans' privacy and security.